Wednesday, September 21, 2005

Gonzales goes a-courtin'?

The other day, my friend Johnny sent me an item that linked to a Washington Post article, "Recruits Sought for Porn Squad", by Barton Gellman:
Early last month, the bureau's Washington Field Office began recruiting for a new anti-obscenity squad. Attached to the job posting was a July 29 Electronic Communication from FBI headquarters to all 56 field offices, describing the initiative as "one of the top priorities" of Attorney General Alberto R. Gonzales...
The article starts by leaning more toward how agents are laughing down their sleeves in derision and/or exasperation at the idea of diverting resources from terrorism to the persecution of pornography featuring consenting adults, which the FBI memo admits tends to "encounter many legal issues, including First Amendment claims," according to the Post.

What interests me more in the article is the revival of Reagan Attorney General Edwin Meese's crusade:
But Gonzales endorses the rationale of predecessor Meese: that adult pornography is a threat to families and children. Christian conservatives, long skeptical of Gonzales, greeted the pornography initiative with what the Family Research Council called "a growing sense of confidence in our new attorney general."
When Gonzales' name was floated as a possible nominee for O'Connor's seat on the Supreme Court, social conservative groups were unhappy with his borderline stance on issues like abortion. Really, really unhappy:
Gonzales is considered suspect by pro-life forces and has a thin, hard-to-pin-down track record as a Texas judge. In fact, he is the only A-list contender whom religious conservatives pledge, upfront, to fight. "We'd oppose him," said Tom Minnery of Dr. James Dobson's Focus on the Family. ("The Holy War begins", by Howard Fineman and Debra Rosenberg, Newsweek)
(See also "Conservatives: No to Gonzales", by John Gizzi, and "Again, Right voices concerns about Gonzales", by Thomas B. Edsall and Michael A. Fletcher.)

So now pornography between consenting adults, and its distribution, is a matter of concern for Gonzales. A political move positioning him for a second chance at O'Connor's seat? It also seems a bit convenient to be taking the lead of former Attorney General Edwin Meese: see his report and reactions to it. Current position of Edwin Meese: one of the "four horsemen" who advise Bush on federal judiciary nominees. Guess who else say on that commission? James Dobson, currently of Focus on the Family. Coincidence?

Sunday, September 04, 2005

Rehnquist passes on

This evening, AU Yellow Dog called me from a football game to pass on the news that Chief Justice William Rehnquist has died. Before the career autopsy begins, followed by prognostications about the future, a moment of appreciation for a longtime public servant.

Note to "anonymous" #2 comment, September 21: Well, each of us is our own person, so my colleagues and I don't have to agree all the time. In general, I certainly don't appreciate that Rehnquist's stances on a multitude of issues were not friendly to mine, to say the least. But, at the moment of his death, I stepped back enough to recognize that, despite that difference, the position that he held was an incredibly difficult one for any person to do. That admission does not validate his positions, but as the top administrator of the court, he was recognized even by those who vehemently disagreed with those positions as able to hold together a court staffed by widely divergent thinkers and to keep it functioning. If you've ever managed a group of strong-willed individuals who need to somehow work together toward a common good, you know how difficult this is.

At any rate, that moment has passed.

Monday, August 29, 2005

Personal connection--dating service or judicial nominee criterion?

Normally I would not post more than once a day, but while researching the other entry, I came upon this little gem in the Boston Globe online ("Bush picks jurist for top court, calls for a 'dignified' process", July 20, 2005):

After a day filled with rumors, the announcement of Roberts as the court nominee took much of Washington by surprise.

A senior White House official stressed yesterday that the choice reflected a personal connection that Bush made with Roberts during the vetting process.

''He really hit it off with Roberts," the official said. ''As you know, the president is a person of intuition and he saw in [Roberts] not only a brilliant legal mind but a terrific judicial temperament."
Okay, quick quiz. About whom did Bush say the following:

<>I looked the man in the eye. I found him to be very straight forward and trustworthy and we had a very good dialogue. I was able to get a sense of his soul. He's a man deeply committed to his country and the best interests of his country and I appreciate very much the frank dialogue and that's the beginning of a very constructive relationship.
If you guessed Vladimir Putin in June 2001, you're correct! And if you've been following any news over the past four years about developments in Russia--or should I say, frightening regressions from anything an American would recognize as democratic process, or care for the vast majority of the citizens of Russia--then you can be the judge of just how wrong Bush's intuition can be. Or, how specious. Is recourse to "intuition" just another rhetorical tool for dodging the possibility of being asked about any specifics?

I've posted in the past about how government is no place for these kind of criteria when we're considering filling positions of importance--lifetime positions that will shape the legal reality under which we all live, no less. Of course, you want the President to be able to work with people on his own staff (although there is a little something called professionalism that should prevail in the interests of serving the public). But what legitimate relevance the president's personal liking for a person who will not even serve in his branch of governance, let alone his office, has in this case, I am at a loss to say.

Operation Iraqi--I mean, Supreme Court Freedom

While browsing through links from a friend today, I happened upon a most interesting page in the Christian Broadcasting Network (CBN) site. The page is titled "Operation Supreme Court Freedom", and it features a letter from Pat Robertson, "prayer points", and encourages you to submit your "pledge to pray". Pray, for what?

In brief, the militaristic name of the "operation" plays on "freedom" as it relates grammatically to "Supreme Court", oscillating between the ideas of negative liberty (freedom from something) and positive liberty (freedom to do something). On the one hand, the letter advocates freedom from the "black-robed tyrants" who have occupied the bench for the past 40-odd years. These judges pushed a "radical agenda...with devastating results...But now the scales seem poised to tip in the other direction." The idea is to allow the, I suppose, natural inclinations of the Supreme Court to prevail:
Today, we can look forward to the very real possibility of a conservative majority on the Supreme Court — justices who will uphold the original intent of the Constitution and not impose their personal or political beliefs on the American people.
So, we can also look forward to the rectified Supreme Court's freedom to uphold the "original intent" of the Constitution, which directly implies freedom from "personal or political beliefs" held by individual justices.

A few thoughts here. First, the blanket vilification of the Supreme Court as an entity, by metonymy with the people who sit on the bench (you know, the "tyrants", initially represented as inclusive of all the justices in the past 40 years), is lifted when the majority of people who staff it hold conservative positions. So the legitimacy of the institution appears to be pegged not to its Constitutionally-mandated existence, but to the broadly defined ideology of those who staff it. But second, what is crucial is that the court be free from "justices who...impose their personal or political beliefs on the American people". Did I miss something, or wasn't it just established that there are people who should be imposing their personal and/or political beliefs on us--conservatives? Gee, that sounds downright...tied to politics!

Third, the emphasis on the "original intent" of the Constitution rubs a bit uncomfortably against "prayer point" no. 3, "Pray that the justices of the Supreme Court would rule according to the Constitution as written and not man's opinions." To begin with, once you start discussing "intent", you are in the realm of interpretation, a distinctly human activity. Further, is there anyone who would suggest that the Constitution was in fact not composed of "man's opinions"? Such language is better fitted to the way some people talk about the Bible: as handed down by God. This conflation, which applies the religious concept of reverence to a undoubtedly man-made document, is at the heart of how power brokers manufacture a popular desire for a strict constructionism ("prayer point" no. 12) that would, in fact, disadvantage the majority of citizens: broadly, women, non-whites, and those outside of the economic elite. It strikes me as a cruel and dirty trick to put honest people to work advocating for their own destruction by wrapping the pernicious idea of returning to a specifically 18th-century world-view in the garb of piety. Granted, not every judicial decision based on a non-literal interpretation of the Constitution will stand up to scrutiny, because there must be human opinion involved. That's where appeals come in. But as I've written before, is illegalizing abortion at the cost of vitiating our established (but not explicitly written) right to privacy the best way to combat the entailed human suffering?

Ehem. Robertson continues, further down:
Before the president's announcement [of his nomination of John Roberts], I had the privilege of going over a briefing book that was provided by the American Center for Law and Justice (ACLJ). The book contained a short list of justice candidates who fit the president's judicial philosophy, and I am delighted to say that John Roberts was at the top of this list, though at the time, we thought the president would select a woman to replace Justice O'Connor.
Interested in this briefing book business, I hopped over to the ACLJ site and used their search engine, which turned up not their own book, but a July 10, 2005 L.A. Times article, "Legal Activists Ready to Go Once President Bush Puts Up Supreme Court Nominee". Apparently, the genre of the briefing book is now de rigeur amongst such organizations in the event of nominations. But of particular interest was this excerpt:

...Groups on the right that scarcely existed a decade ago now have the ear of the Oval Office, a level of access liberal organizations say they never had under President Clinton.

"We're in regular consultation with the White House," said Jay Sekulow, executive director of the American Center for Law and Justice and the evangelical community's representative on a group of advisors, assembled three years ago, that helps set conservative strategy on judicial issues.

The other members of the group, nicknamed "the four horsemen," are Edwin Meese III, attorney general in the Reagan administration; C. Boyden Gray, White House counsel to President George H.W. Bush; and Leonard Leo, executive vice president of the Federalist Society for Law and Public Policy Studies, a libertarian think tank whose membership includes about 20,000 lawyers.

In the closing lines of a Newsweek article published the next day ("The Battle Over a Supreme Court Nominee Begins", also catalogued in the ACLJ site), Howard Fineman and Debra Rosenberg note:
As he prepared to fly off to the G8 summit in Scotland, Bush took along briefing books about the shortlist candidates, none of whom he has formally interviewed.

The Boston Globe concurs, and goes Newsweek one better in a July 20 article, "Bush picks jurist for top court, calls for a 'dignified' process":

Bush's short list of potential nominees included 11 candidates, according to White House officials. The president took a notebook filled with biographical information during his trip to Europe this month; poring over the briefing books aboard Air Force One, Bush discussed the issue with aides and allies, swearing them to secrecy.

Aides being in on a secret--that's one thing. Who are these anonymous "allies", and why are they being treated to secrets? And is that the language coming out of the White House staff--implying there are interested Americans who are enemies? Because if Robertson's "prayer points" are any indication, that is religious language: "Pray that any plan of the enemy for the Senate confirmation hearing would be thwarted. Take authority over the schemes of Satan concerning the Supreme Court."

I suppose that the president is entitled to consult with whomever he pleases (within the limits 0f the law). One improvement in this nomination process was that Bush did meet with senior Democratic Senators, a concern raised regarding the last batch of judicial nominees ("Bush Meets With Senators About Supreme Court", Tuesday, July 12, 2005). At the meeting with Senate party leaders Frist (R-TN) and Reid (D-NV), and ranking Judiciary members Specter (R-PA) and Leahy (D-VT), the Democrats advanced three sitting judges whom they considered "consensus candidates". However,
The [senior Democratic] aide said neither the president nor Chief of Staff Andy Card suggested any names themselves, and that Reid made it very clear he hoped Bush would consult with Democrats with specific names before any announcement is made. The aide said Reid told the president that he didn't want Democrats to be in the position of learning the president's nominee by reading about it in the media. The aide added that the White House made "no specific promise of that" but gave a general pledge to consult further.

Reid said several senators had suggested names to the White House, but it's important that Bush share names, too, because he has "hundreds of names" to consider. Asked about Democrats' objections to specific candidates said to be under consideration, White House spokesman Scott McClellan said, "No individual should have veto power over a president's selection."

Wait, "veto power"? That's a pretty far leap from "consult"--a courtesy apparently given to "allies", which, according to the ACLJ's Jay Sekulow, includes unabashed ideologues and special interest groups like his own. If I'm getting the picture correctly, the ACLJ and Pat Robertson have an inside track on the nomination deliberations of the White House; leaders within the opposition party hope not to learn about the decision after the staff of every newspaper that prints the name.

Maybe Robertson's letter is right to interpret recent events as "the direct result of prayer and intercession":
[I]n July of 2003, The 700 Club launched Operation Supreme Court Freedom, a nationwide 21-day prayer campaign. During that time, we asked our partners and viewers to pray for God to intervene and restore righteousness and justice in our land. Tens of thousands of people responded to this massive prayer offensive and cried out to the Lord to change the court. And God heard those prayers!
I will concede that it is possible that the prayers of 700 Club members did convince God to intervene and cause Justice O'Connor to resign from the Supreme Court--although I consider the monetary contributions of the faithful likely to be more effective in Washington. Either way, we should all be careful what we wish, or pray, for. I'm not sure that our Supreme Court could sustain the kind of ideological factionalism and growth of vigilante "justice" that has thus far constituted Iraqi "freedom".

Tuesday, August 16, 2005

Predictive Utility, sure: but what are we predicting?

The debate is old hat by this point: how good a guide is John Robert's record as an attorney at predicting what kind of decisions he will make as a Supreme Court Justice?

Specifically, do we interpret his record as an attorney to be a function simply and entirely of advocating on behalf of his clients or instead to reflect his own convictions? Jason Spitalnick argues that, while specific arguments Roberts has made reflect only his commitment to his clients, the more general arc of Roberts' career provides significant evidence of his conservative inclinations. He characterizes Roberts' career choices as therefore having predictive utility. Yes, his career "predicts" that Roberts is a conservative, surprising as that may be. Count me enlightened on that conundrum.

Spitalnick's post doesn't address the interesting question at all -- can we read his earlier work for clients as indicative of his position on particular legal questions? I have the same answer as everyone on this: yes, no, maybe. In other words, the relationship between Roberts' client-service work and his future legal judgments can only be considered on a case-by-case basis. The only general truth we get from this line of inquiry is Spitalnick's trivial one.

That is to ask about the substance of Roberts' legal opinions. But substance, in any one case, depends on the method by which a judge considers the legal questions before her. The more independent variable is, therefore, jurisprudence, procedural inclinations. John Roberts has apparently changed over the course of his career in the way he talks (and therefore thinks?) about the process of reaching legal decisions. Recently, according to the LA Times, he has
said that “deciding cases was a lot harder than I thought it would be,” and that “I’ve found that I have to spend far more time than I thought I would just getting to that first step—what the right answer should be.” He also stated that he often finds himself changing his mind as he reads a case’s briefs, discusses the case with his clerks, listens to oral arguments, and convenes with the other judges. Asked about the legal reasoning he finds most persuasive, Roberts expressed a dislike for strident rhetoric.
Nick Stephanopolous, to whom I just linked, characterizes the evidentiary value of the two phases of Roberts' way of talking about the law. The more recent remarks, being more recent, possess some presumption. But the earlier Roberts' more strident ideology "has the ring of conviction." I don't see the contradiction Stephanopoulos seems to. As Roberts' jurisprudential thought and instinct has evolved, he has become less ideological and more incremental. Makes perfect sense.

So while Roberts' career as an attorney may or may not serve as an index of his likely career as a judge in substantial terms, it doesn't correlate at all closely with the method of reasoning he is likely to employ as a judge -- and this on two counts. First, an attorney does not reach decisions about final legal positions at all; his clients do. He decides how to argue the positions effectively. Second, Roberts' appears to have changed -- in perfectly understandable, even predictable ways -- since the days when he worked as an attorney. And, because his method of reaching decisions will largely determine the character of his decisions, there is not much to be learned from Roberts' career as an attorney.

Tuesday, August 09, 2005

Moral rectitude and political maneuvering

When asked about the trustworthiness and moral rectitude of politicians, one of Woody Allen's avatars quipped "they're a notch below child molesters". It's a laugh-line from a paranoid neurotic in Annie Hall, but as with much intellectual comedy, it has the sour aftertaste of truth. We have come a long way from the idealism of JFK, and my sense is that even when Americans hope for the best from their politicians, we have become accustomed to receiving the worst--even JFK can furnish some examples in that regard.

The vicious outcry against the judges who upheld Michael Schiavo's custody of his wife, raised by public figures like James Dobson, made it clear that this branch of government, too, has been drawn into the discourse of vilification. What we are supposed to expect from these arbiters of American justice seems less clear all the time. What counts as established jurisprudence that cannot be turned back, or is there any such thing? Should we expect a judge to contravene the law when a matter of personal principle, religiously based or otherwise, conflicts? How much should a judge's personal views matter, and how do we know where a judge draws that line when interpreting the law? Even a judicial robot could not render decisions without some kind of bias, following the dictum that machines are only as smart as the people who program them. And yet John Roberts has allegedly made comments to the effect that, given his Catholic faith, he would voluntarily recuse himself from any decisions involving abortion. While that statement has been disputed (although I don't think by Roberts himself), the very idea that someone's private creed would prevent him or her from carrying out a public charge, and selectively, is troubling. I can't see how a judge could possibly function that way. That sounds like a politician talking, angling to please.

Judges, at least at the federal level, are not supposed to be politicians. That's why we don't elect them directly. They inhabit a branch of government that, while its members are vetted by the politician branches, was intentionally designed to be separate, and non-majoritarian--like the Senate that was granted the responsibility of advice and consent on them. In fact, the charge of a federal judge is all the more crucial because he or she may be asked to check the excesses of the politician branches--which, inevitably, gives those branches a vested interest in who gets to occupy those positions. And then we're back to square one: do politicians want to govern the country responsibly, or is their moral rectitude to be a notch below those who would use the asymmetrical power relation they enjoy to achieve selfish ends, regardless of the damage done to those whom they should be protecting?

I am troubled by the political maneuvering surrounding the Roberts nomination. Citizens of a democracy, including the representatives elected from amongst them into the federal government, should not have to guess about a nominee to such a sensitive position of responsibility as the Supreme Court. We may not all like what there is to hear about a nominee, but all of this "is he or isn't he" back-and-forth on any number of issues is not healthy for our confirmation process--in fact, the guessing game, with each round of headline-grabbing disclosures, tinged by the salaciousness of gossip, seems too often to become a substitute for the sober evaluation of what a nominee would mean for the direction of the country. Roberts' writings on issues like civil rights, whether produced for an employer or not, are indicative of his own thought processes--any objection to the contrary seems ot me disingenuous. The calculating stranglehold that the Bush administration is exercising over documents authored by or pertaining to Roberts during his tenure as Deputy Solicitor General under Bush 41 is only encouraging this game. Even if there is nothing in those documents that will tell us anything we don't already (supposedly) know, the impression that such an obstruction creates is that they will. And if there is really nothing there, then what's the point in the obstruction? Just to say "nyah nyah, you can't make me"?

Just as some people see the release of such documents as a matter of executive privilege, some people I have spoken to are of the opinion that if a president has the fortune to fill a slot on the Supreme Court on his watch, then he gets to pick whomever he pleases, and he shouldn't be given a hard time by those losers who happen to be in the minority at the time. Even if you subscribe to that basic idea, the moral rectitude of the politician who happens to be president should be part of that consideration, too. To begin with, the whole discourse of "winners" and "losers" is ugly and misplaced in governance--which should be a cooperative project, unlike politics, which is related but different--but moreover, it's difficult to learn about the behavior and policies of this particular administration without experiencing the sinking feeling that, as a nation, we've been had, from the war and occupation in Iraq to deceptively-named environmental policies to the drive to reform Social Security. That's why the Senate's advice and consent role is so important to preserving a government that is truly of, for, and by the people--because while one man is in a position to do terrible damage to our nation as a whole, one hundred people are given the crucial task of ensuring that this does not happen. The confirmation of John Roberts may or may not represent that damage in and of itself, but the manner in which this process is being played out by politicians and pundits is already representative of some of the worst tendencies of the system.

To close with a thought from another observer of human nature and purveyor of popular entertainment, P.T. Barnum, you can fool some people some time, but you can't fool all the people all the time. I don't want to go on feeling like the leaders of this country are playing some kind of shell game with the branch of government that is charged with vetting the legal reality in which we all live--for that is what the struggle is over, what will constitute the official reality of the United States. And so I hope that there are Senators--including amongst the "winners"--who have the moral rectitude to keep their eyes on the task to which they have been elected: to make sure that the phrase "with liberty and justice for all" continues to be true, rather than to be complicit in the degradation of the institutions that make this nation great.

Saturday, August 06, 2005

Issues beyond the narrow fact of Roberts

I have argued that I like Roberts as a nominee, and expressed my belief that he will make a good Justice. There are arguments to be made against him, especially his apparent sometime disrespect for the rights of individuals over and against executive power. But there are also other issues the nomination process raises, that I would like to have on people's radar screens.

1. The next nominee. The President's choice was restrained and wise, on balance. The far-right social conservatives seem to be content with Roberts, who has suggested that Roe v. Wade was a dubious decision. (Are they aware of his statements that suggest he is unlikely to vote to overturn it? Of course they are: but what do they make of them? And what of his assistance to help gay people avoid discrimination?) Roberts is not a replacement for O'Connor, as a swing vote, and I am guessing that the President does not feel bound to maintain the current ideological balance on the court. But what does the President intend to do when filling Rehnquist's seat? Will he consider that he has chosen a solid conservative and now is the time for a centrist justice? Will he, alternatively, feel that Roberts was palatable to most and that he has built up the political capital to try to push through a real extremist? Is this kind of balancing act even something the President cares about?

2. The question of Chief Justice. I would like to add a plug for a non-judge, believe it or not, to fill this role. There are two reasons for this. First, the Supreme Court is most suited for a legal generalist, given the variety of cases that come before it. Most distinguished legal figures are specialists to some degree. Second, the Chief Justice's primary responsibility is to guide the decision-making process of the court. This means he must be able to guide discussion, build coalitions, etc. This particular set of skills is better developed in managerial and political positions. A Senator or Governor would make a good Chief Justice. (O'Connor, too, would have made an excellent Chief Justice, with her political background and consequent pragmatism.) The recent example that comes to mind is Earl Warren, appointed by Eisenhower in 1953. Warren had served as California governor for the previous decade and as state attorney general before that. He was never a judge until he became Chief Justice. In the early stages of speculation about whom President Bush would appoint, some Senators' names were in the mix, e.g., John Pryor of Texas. I wouldn't have wanted to see Senator Pryor himself on the high court, but I like that elected officials were being considered.

3. This is the most important and pressing extra-nominee consideration: the Senate's role and powers in the nomination process. Right now, that issue comes down to access to documents from the White House. The Bush administration has always been problematic in this respect. From the Washington Post:
Democrats had asked for memos and other documents related to 16 cases involving such sensitive issues as abortion, civil rights, environmental protection and freedom of speech. Roberts has said his personal views cannot fairly be inferred from a position he argued on behalf of an administration. This prodded Democrats to seek documents that might have revealed his opinions about the positions he took in internal deliberations about the merits of different arguments, and whether the government should intervene.
The real issue is not a substantive one, restricted to the question of whether Roberts would make a good Justice; it is rather the procedural question of how to define the Senate's role of advise and consent to presidential nominations. Denying the Senate access to documents they request clearly usurps the Senate's consitutional duty. The White House generally argues either that the documents are not relevant or important or that they must be kept confidential. Both arguments, of themselves, damage the separation of powers. The White House must not be allowed to decide for the Senate what is or is not important for them to consider. That too easily allows abuses of the process by the executive office. When the White House chooses what documents the Senate may see, it defines the nominee on its own, rendering Senatorial consent meaningless:
Sen. Edward M. Kennedy (D-Mass.) said in a letter to Bush that White House officials are dragging their feet in producing documents they had agreed to furnish, while engaging in "the leaking of highly selective documents" that are "intended to paint a better picture of the nominee."
Moreover, it has happened time and again that when we actually see documents that had been classified we realize that there was no reason to classify them in the first place; the purpose had been to shield them from the eyes of public watchdogs, not public enemies. (It should be noted, also, that a third argument of the Republican leadership -- that the Senate should not be able to question a nominee on his personal legal and political views -- is irrelevant to the question of the Senate having access to documents. It is also, in my opinion, bogus in itself.)

The John Bolton nomination is in some respects a good precedent for disagreement between the executive and legislative branches. The White House refused documentation that would have allowed the Senate to evaluate its nominee for ambassador to the UN and the Senate refused, on those grounds, to confirm him. That's the way it should work. But it is hard to stand on principle alone: Bolton was also clearly a miserable choice for the position, in a way that Roberts is not, and part of the Senate's ability to refuse confirmation depended on the political capital that Bolton's failings gave them. Roberts lacks such acute problems and the Senate consequently has less political maneuvering space.

Friday, August 05, 2005

John Roberts, we hardly know thee

This is just fantastic -- fantastic and hilarious. John Roberts gave invaluable, if behind-the-scenes, assistance in Romer vs. Evans, one of the most significant legal victories for gays rights activists. The decision declared unconstitutional that part of the Colorado legal code that denied gay men and women civil rights protections.

That's the fantastic part. The hilarious part is how those social conservatives, who consider gays somehow less than people, are now fretting and fulminating about it. I don't know that President Bush or his advisors knew about Roberts' work on behalf of gay rights, but I wouldn't be entirely surprised if they did. There have always been some indications that the President was personally sympathetic to the plight of prejudice that homosexuals face; it has only been that his feelings on this matter took back-seat to his willingness to take the political advantage he could derive from gay-bashing. (This is speculation, of course: it is always dangerous to ignore actions in favor of inferring sentiments.) It is also amusing to see how conservative legal commentators try to minimize the importance of this work for our evaluation of Roberts. NRO Bench memos has a series of posts in reaction to this news. The general theme is "Don't worry, Roberts was just doing his job. He doesn't really think gay people deserve equal respect." Whew.

But there may be something to what they are saying and it goes to the same point I have been trying to make about Judge Roberts on this blog. There is certainly no reason to think that Roberts is a gay-rights advocate in any strong sense of the word. Rather, he conducts himself professionally in strict adherence to his balanced conception of what his job entails. As a lawyer, that involves him in pro bono work taken on by his firm. As a judge, it commits him to decide carefully and with integrity how precedent, the Constitution, and other legal concerns direct him to rule.

It is not that he is ideologically inclined to defend the rights of gays. It is that he is someone who will not let his ideological inclinations direct his decision on whether or not gays deserve constitutional rights. I would much rather have someone of the latter disposition serve on the Supreme Court than the former. (Admitting, however, that I think the legal case for full gay rights is ultimately a no-brainer.)