Wednesday, July 27, 2005

John Roberts and Executive Authority

Ed. note: This post is from Chase Nordengren, a contributor on my weblog, Political Forecast. I think its a very prescient piece.

After dwelling on this issue for ... well, however long its been, I've finally come to a conclusion. Everything the pundits say about this nominee is wrong. (I know, a real shocker.) It's not about abortion or age or steady jurisprudence or compromise or a pretty resume. It's about the administration's overall strategy to expand and change the role of the executive branch in American government, which they're accomplishing in three ways:
  1. Restoring a sense of public pride / confidence in a President (the 2000 campaign pitch, the feel of a "man of the people" President. Arguably questionable based on recent scandals, but that was a mistake.)
  2. Consolidating power in the executive branch (PATRIOT Act, enemy tribunal policies, massive govt spending in all areas, etc.)
  3. Making the WH the center of political and social guidence (the FCC & Margaret Spelling's restrictions of all non-Leave it to Beaver ideas, the coordination with Republican Senators when it comes to ideological message, etc.)
John Roberts was chosen because, no matter what the issue in the next 25-30 years (okay, age does sort of matter), he seems ready and able to expand the executive branch's authority. Consider the following case examples, the first two courtesy of the SC Nom Blog:
  • AFL-CIO v. Chao, 409 F.3d 377 (D.C. Cir. 2005) - Judge Roberts dissented from the majority's holding that the Secretary of Labor exceeded her statutory authority by promulgating certain reporting requirements for labor unions. Judge Roberts highlighted several aspects of the statutory delegation that indicated that Congress had intended to confer especially broad authority on the Secretary
  • Indep. Equip. Dealers Ass'n v. EPA, 372 F.3d 420 (CADC 2004): In an opinion joined by Judges Garland and Rogers, Judge Roberts dismissed an action brought by a trade association of independent dealers of heavy construction and industrial equipment. The association was seeking review of the EPA's interpretation of emissions regulations for nonroad engines. Judge Roberts held that since the EPA advice letter at issue merely reiterated the longstanding prior interpretation of the regulations, the letter did not constitute an agency action subject to judicial review. (No judical review of executive action?)
  • The Rumsfeld v. Padilla case, authorizing use of military tribunals for anyone the President deems an "enemy combatant", citizen or not.
Watch this issue as most important during the confirmation.

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Tuesday, July 26, 2005

Savvy: the man of many wiles makes a great lawyer, but-- a judge?

One of the common themes in media reaction to Bush's nomination of John Roberts to the Supreme Court is "savvy". According to the Oxford English Dictionary, as a noun 'savvy' means "Practical sense, intelligence; ‘nous’, gumption"; as an adjective, "Of persons, etc.: having practical sense, quick-witted; knowledgeable, wily, experienced. Also wise to (something)." In a word, 'savvy' used in a political context implies gamesmanship, manipulation. The (judgmental) contrast between the straight-forward speaker and the "man of many wiles" is at least as old as Achilles' contemputous rejection of Odysseus' embassy in Iliad book 9. "Savvy" is an ambivalent quality; perhaps necessary for politicians, but distinctly risky when applied to our judicial system. It might have been savvy, for example, for Solomon to find out which woman was truly the mother of the baby by threatening to cut it in two, but that's not the way we administer justice in a constitutional democracy. Of course, as usual, media outlets of all stripes are willing to accommodate the treatment of the Supreme Court as just yet another arena in the deathsport that has become American political culture.

So who is savvy in this instance, and what is that taken to mean?

Roberts is himself presented as savvy in a July 24 AP story by Michael R. Blood, run in a number of newspapers nationwide: Roberts' writings show wit and savvy
SIMI VALLEY, Calif. -- John Roberts was not afraid to jab an elbow on policy or dispense opinion with a dash of sarcasm when he was a young lawyer in the Reagan White House. President Bush's Supreme Court nominee was a stickler for legal nuance who used a finely tuned political radar to steer officials away from entanglements on Capitol Hill. Roberts' writings, stored at the Ronald Reagan Presidential Library, give a sense of a partisan eager to keep lawmakers and bureaucrats in line. For someone who has become known in both parties for a self-deprecating wit, Roberts could be blunt on paper, even dismissive.

See also the July 22 Washington Post article by Jo Becker and Amy Argetsinger, The Nominee As a Young Pragmatist
As an up-and-coming young lawyer in the White House counsel's office from 1982 to 1986, John G. Roberts Jr. weighed in on some of the most controversial issues facing the Reagan administration, balancing conservative ideology with a savvy political pragmatism and a confidence that belied his years.

In the perennial judicial-nominee questioning on Roe v Wade, Eric Umansky of Slate.com notes in his July 20 piece, Revealing Roberts

The Wall Street Journal describes the Harvard-trained Roberts as "affable, thoughtful and solidly Republican." But though he's been around Washington for two decades, it's hard to nail down his exact views since he's served on the bench for only two years. Before that, as an administration attorney he was obligated to take whatever positions the Oval Office handed down.

Some of the papers don't buy or consider that notion; USA Today's subhead, for example, screams that Roberts "argued Against Roe." But when asked about Roe v. Wade at his 2003 confirmation hearings, Roberts described it as the "settled law of the land." Of course, even that doesn't mean much; it could have just been a savvy statement of the obvious: As an appeals court judge he was bound by the Supreme Court's precedent.

In keeping with the borderline hagiography that sometimes passes for political analysis, the Chicago Tribune's Tim Jones, Andrew Zajac and Andrew Martin submitted on July 24 John Roberts' rule: Reach for the top with the subheading "Intellect, discipline, savvy have served nominee since youth", and writing
...Roberts is reserved, but not aloof; quiet, but not shy. He rarely volunteers information, and he keeps his personal views so close that his friends laugh that they don't know his opinions. He even plays squash with both hands, so his opponent never knows where the next shot might come from.

So if anything, the characterization of "savvy" is kind of like saying, "This guy is smarter than those around him, he can play them [since "savvy" is a term of admiration, it's "them", not "us" in this context], and he'll get what he wants." As a lawyer, savvy is key: rules like "Never ask a question you don't know the answer to" rest on such a mental faculty. As a judge, the supple mind of a long-time partisan lawyer may not be appropriate.

The apparently praiseworthy quality of the nominee appears to be rubbing off on the nominator...kind of. Bush gets credit for advancing a nominee who will be hard to beat. So that's what it's come to: not the best candidate for the job, just one who will be iron-clad--or, in this age, Teflon-coated. The fact that this longtime Washington lawyer has garnered respect from Democrats as well plays by one of the oldest tricks in the book: in time of war, divide in order to conquer. But it's not just the nominee--it's the timing (to detract from the Rove-Wilson-Plame circus), and the means (sending out a former Republican senator turned TV star to trade in onthe fame and popularity of his fictional character) that also get called "savvy".

Mark Bosworth of the Daily Iowan gets University of Iowa professors on record with Roberts a savvy choice, profs say (July 20; this story was also picked up by other news outlets)

Reacting to President Bush's nomination of federal appeals court Judge John Roberts to the Supreme Court, UI professors are calling the selection "a very savvy political choice.""Roberts is a man of amazing ability," said Stephanos Bibas, a UI associate professor of law and a former clerk for Justice Anthony Kennedy. Bibas feels that it is "extremely likely" that he will be confirmed. Nicholas Johnson, a lecturer at the UI law school, echoed his colleague. "I think it would be very difficult to prevent him being confirmed," said Johnson, who clerked for Justice Hugo Black.


An editorial in the July 21 Texarkana Gazette also goes right to the point:

Make no mistake here: Roberts is a solid Republican conservative and a politically savvy selection for President Bush. Roberts worked in both the Reagan and the first Bush administrations and in private practice argued 39 cases before the Supreme Court-mostly from a conservative legal standpoint. But supporters and opponents alike agree that, despite his credentials as a legal conservative, Roberts is no right-wing ideologue with a personal agenda to fulfill when and if he takes a seat on the country's highest court.


Court TV online (July 19) offered an opportunity to discuss the nomination of John Roberts with Ann Althouse, law professor at the University of Wisconsin at Madison:
Question from RachelC: Hi Ann. My husband and I discussed tonight that the timing of this nomination was to deflect attention from the Karl Rove issue. What are your feelings on that theory?
Ann Althouse: I think we can assume that Bush is politically savvy about the timing of things like this. I think a lot of Americans may be eager to hear some different news after so much attention to the Plame affair.

Dan Balz and Charles Lane of the Washington Post also characterize the nomination with A savvy choice to shift top court
President Bush moved boldly to shift the Supreme Court to the right Tuesday night by selecting U.S. Appeals Court Judge John G. Roberts Jr. to succeed Justice Sandra Day O'Connor. But in choosing a jurist with establishment credentials and bipartisan allies, Bush was also looking for a nominee who could still win confirmation with some Democratic votes.

Most to the point in terms of my concerns, this plaudit issued by Bill Schneider of the "CNN Political Unit", who, on July 22, crowned the nomination the "Political Play of the Week"
Some on the right, and many on the left, are suspicious of Roberts. But both sides may be forced to conclude, reluctantly, that Roberts is the best they're going to get. You can argue with Roberts' views. But there doesn't seem to be much argument over one point: that it was a politically savvy choice. And the Play of the Week.

Finally, the way that Peter Johnson of USA Today writes in "Bush takes media by the horns after days of trouble" shows the full sweep of the strategy employed for our political culture:

The White House dispatched former senator Fred Thompson, R-Tenn., to support Bush's choice on today's network morning shows. A savvy choice for those entertainment-oriented programs: Thompson stars on NBC's Law & Order.