ACSBlog: Laurence Tribe expresses deep concerns about John Roberts (video)

[Starfury]

Professor Tribe Debunks Myths Surrounding Roberts Nomination

On Saturday, July 30, constitutional luminary Laurence H. Tribe, Carl M. Loeb University Professor and Professor of Constitutional Law at Harvard Law School, delivered the keynote address at the 2005 ACS National Convention. Recognized as the nation’s single most cited legal authority over the past 50 years, Professor Tribe noted several reasons why Americans should be concerned about the nomination of Judge John Roberts to the U.S. Supreme Court.

Video of Professor Tribe's remarks are available in the ACS video archives.

I strongly recommend that you watch this video. It's about 75 minutes in length, but I found it to be quite watchable (and I get bored pretty easily :) ) Tribe has a dry wit that keeps your attention.

In a nutshell, Tribe is concerned that John Roberts will indeed be an activist judge for conservative issues, and since he'll be too smart to get tripped up in the Congressional hearings, he'll almost certainly make it to the bench.

The first part of his speech describes Roberts' early years in the Reagan administration where he helped prep O'Connor to pass her confirmation hearings when Roberts was only 18 months out of school! In particular, he advised the administration to shift the debate away from O'Connor's political and judicial views to try to ease the confirmation process. There were several other interesting and revealing anecdotes of Roberts' character and opinions. Tribe presents a strong critique of Roberts' complaints about the level of judicial activism in the Supreme Court. He emphasizes that Roberts' views are important and that the only reason to not describe them is to "keep people in the dark" and gives credit to the folks researching Roberts by examining the 14,000 pages of documents recently released by the National Archives to gain insight on how Roberts would interpret ambiguous texts (such as the Constitution, for example).

(Tribe also gets in several zingers on Scalia and Bork - nothing mean spirited, just showing conservative inconsistencies.)

The main segment of Tribe's talk starts around the 40:00 minute mark and describes his concerns with Roberts as a Supreme Court nominee. Specifically, Roberts may very well:

1. Defer inappropriately to Bush (detainee treatment, for example)
   
2. Reliably interpret the Congressional Commerce clause in the narrowest sense possible (interpreting the Constitution as a 19th century document to solve 21st century problems such as global warming).
   
3. Hold an overly broad definition of property rights (Environmental issues vs. developers - "toad" case, for example)
   
4. Consistently cast the deciding vote in affirmative action cases (Roberts considers AA to be "reverse discrimination")
   
5. Interpret non-specified rights in the narrowest sense possible (privacy, reproductive rights, etc.)
   

For each concern, Tribe gives detailed reasoning including court case analysis (in some cases, far more detailed than I've read anywhere else). He also had 2 more main concerns regarding Roberts but ran out of time. I'd definitely like to know what they are.

Again, if you want more insight from a leading Constitutional authority on just how horrible Roberts might be as a Supreme Court justice, you should watch this video. (Link above in quoted text block) It is viewable in Windows Media or RealMedia formats.

[Kagemusha]

1. as Josh Marshall was musing, the question is if he is bad enough.

I mean, points 1 through 5 there are not good, no. But they are within the mainstream of conservatism rather than what everyone expected, the religious extremist side of conservatism. Economic conservatism, much laughed at by "real men" nowadays, is not the sort of hot button issue that abortion etc. is.

Bottom line: Since there's not much leftists can do but sustain the blow and soldier on, that's probably what everyone's gonna have to do. With gusto.

[Starfury]

2. True, we can't stop it, but we can point out the lies and hypocrisy.

I mean, when someone like Laurence Tribe basically says that Roberts is like Scalia but worse (because he seems so inoffensive), you have to sit up and take notice. The RW spin doctors claim Roberts favors strictly interpreting the Constitution - but every court decision he's made (not that he's made very many so far) has been a prime example of judicial activism.

If he's the "moderate" O'Connor replacement, and he's apparently the finest mind of the 18th century, what are we going to see for Rehnquist's eventual replacement?

Long sigh.

Ok, done ranting....