by Frank James
President-elect Barack Obama will be paying a courtesy call this afternoon to the man he once voted against to lead the nation's highest court, Supreme Court Chief Justice John Roberts.
Back in September 2005, Obama voted against Roberts to be chief justice even though he said he had no doubts that the conservative Roberts had the intellectual heft to run the court. What he questioned, he said at the time, was Roberts' ability to rule against power on behalf of the little guy.
Obama's presidential transition office issued a statement about the visit:
At the invitation of Chief Justice John G. Roberts, Jr., President-elect Barack Obama and Vice President-elect Joseph Biden will pay a pre-inaugural visit to the Supreme Court of the United States tomorrow afternoon, January 14. This will mark the third time in recent history that a President-elect and Vice President-elect have visited the Court. William Clinton and Al Gore visited on December 8, 1992. Ronald Reagan and George H. W. Bush called on the Court on November 19, 1980. The President-elect and Vice President-elect will join the Chief Justice and the Associate Justices in the ceremonial West Conference Room. They may also join in a tour of the Court. The visit is a private event. There will be no photo or press availabilities.
Back in 2005, Obama said, in explaining his "nay" vote on Roberts:
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 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.
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.
...Given the gravity of the position to which he will undoubtedly ascend and the gravity of the decisions in which he will undoubtedly participate during his tenure on the Court, I ultimately have to give more weight to his deeds and the overarching political philosophy that he appears to have shared with those in power than to the assuring words that he provided me in our meeting.
During his visit to rev. Rick Warren's presidential candidate's forum at Saddleback Church, Obama said he felt vindicated by Roberts' record as chief justice:
REV. WARREN: How about John Roberts?
SEN. OBAMA: You know, John Roberts I have to say was a tougher question only because I find him to be a very compelling person, you know, in conversation individually. He's clearly smart, very thoughtful.
I will tell you that how I've seen him operate since he went to the bench confirms the suspicions that I had and the reason that I voted against him.
And I'll give you one very specific instance, and this is not a stump speech. I think one of the --
REV. WARREN: (Laughs.) When I pick this up, it means --
SEN. OBAMA: Right, exactly. I'm getting the cues, I'm getting the cues. (Laughter.
One of the most important jobs of, I believe, the Supreme Court is to guard against the encroachment of the executive branch on the power of the other branches.
REV. WARREN: Okay.
SEN. OBAMA: And I think that he has been a little bit too willing and eager to give an administration, whether it's mine or George Bush's, more power than I think the Constitution originally intended.
Meanwhile, Orinn Kerr, writing on the Volokh Conpiracy blog last year, had an interesting take on Obama and Roberts. He essentially found them to have a lot of similarities:
First, it seems that both Obama and Roberts were identified at a very young age as having truly exceptional talents that would likely take them to the top. Both were naturals; not just bright and charismatic, but really standouts. As young men, both had an easy manner, and both got along well with others with very different views. And while both clearly had a side, both generally avoided taking controversial positions along the way. Both were very ambitious, extremely bright, and remarkably articulate, and they played their cards with a rise to the top very much in mind. They spent years building their resume and biding their time (eschewing high income positions, at least initially) until they would be ready for their chance.
By the time they became nominees -- Roberts as Chief Justice, and Obama as President -- both men were the subject of tremendous admiration by their political allies. For many conservatives, Roberts was nearly ideal as a Supreme Court nominee; for many liberals, Obama is nearly ideal as a Presidential candidate. Of course, political opponents tend to see both men as wolves in sheep's clothing. For many liberals, Roberts is a hard-core conservative who faked being principled to get confirmed. And for many conservatives, Obama is a hard-core liberal who is just pretending to be some sort of post-partisan moderate to win the White House.
And meanwhile, I think it's hard for outside observers to get a sense of either of them as people. Now I suppose you never actually really know public figures, so I'm just focusing here on public perceptions. But both Obama and Roberts come off as unusually measured and in control in public; public observers of them don't expect to see the kind of personal quirks that would reveal their personalities. Indeed, their most human public moments are when we see them with their adorable young children.
Comments
One of Obama's great Senate speeches was the one against Janice Rogers Brown.
I don't thnk Robers and Alito are very different.
So I don't think they will have very much to talk about with Barack.
Maybe that's why he's taking Biden along. Joe can always fill up any awkward gaps in the conversation.
The Roberts majority will try to derail Obama every chance it gets.
Posted by: ornery | January 14, 2009 1:08 PM
"Supreme Court Speaks"
We divested in all investment and do not expect to have to "recuse" ourselves from any other future Supreme Court cases relating to Oil, Gas, Wind, Food, Imports/Exports, U.S. Attorneys, Torture, Immigration, and ELL for English as a Second Language.
Posted by: Roger Morris | January 14, 2009 2:10 PM
Hey John...ask Obama where he was really born.
Paulo
Posted by: Paulo | January 14, 2009 2:20 PM
ornery:
What are the chances that if that happens, Rush and his ilk will be complaining about "activist judges"??
Posted by: BobinATL | January 14, 2009 2:32 PM
Paulo:
Hawaii.
Again, get over it - you lost.
Posted by: BobinATL | January 14, 2009 2:55 PM
Bob, actually I think the current majority is rather afraid of Obama.
He can appoint a lot of lower court judges who can scuttle, limit, distinguish, etc. etc., the more troublesome right wing majority opinions.
Starting with Burger the Court began taking fewer and fewer cases every year.
They're writing far fewer opinions than even the Court in the 1940's.
So, shifting the Court of Appeals and district cts substantially left could as a practical matter water down some of the far right S Ct majority opinions, or at least make them harder to enforce.
Plus, the Congress right now is overruling the Ledbetter opinion, so the Roberts majority doesn't come out of that one smelling like a rose either.
Posted by: ornery | January 14, 2009 8:41 PM