September 6, 2005
I generally like Bush's nominee to the Supreme Court. John Roberts is smart, erudite, disciplined, fair, and witty. But I don't think I'd vote for him. I'd vote for him in five years, after President Hillary Clinton has nominated a couple of moderates ahead of him. I think Roberts would be an excellent right wing justice. He is a heck of a lot smarter than Thomas, and he is not psychotic like Scalia, and he is not even quite as ideological as Rehnquist.
But he is still an ideologue. He just arrives at his ideology through poetry instead of jingoism.
Judge John Roberts is known to admire the views of Henry J. Friendly, who was a judge on the U.S. Court of Appeals in New York, where Roberts served as a law clerk after he graduated from Harvard. And he admired Friendly's views of the Warren Court, in particular, the way the court made itself available to criminals who claimed that state courts had not treated them fairly. Friendly felt that this was wasting everyone's time. Friendly-- and Roberts--believed that the long delay between a sentence of death and the actual execution of the criminal diminished the effectiveness of capital punishment.
The play on this issue is incredibly instructive. If you read some of Roberts' opinions on some of these issues, you might think he is reasonable, assured, wise and just. He might believe he weighs all the evidence and comes to a conclusion based only and purely on the merits. And in a just world, he really might be wise, reasonable, and just.
But you cannot extract Robert's views on the law from the political realities of America in the 1970's. We are talking about Wallace's Alabama. We're talking about Texas, Louisiana, Georgia, Mississippi. We're talking, for example, about a black woman named Lena Baker being sentenced to death and executed in 1945 for killing a white man after he repeatedly assaulted her. An all-white, all male jury sentenced her to death. Roberts isn't troubled by it.
Roberts appears to hold the position that, since the woman is not innocent (nobody disagrees that she killed the man), the federal judiciary should not even look at the issue of whether or not she should be electrocuted for the crime because federal courts should not intrude on state jurisdictions. That's the real-world application of Roberts judicial philosophy. In this case, we don't "intrude" because.... well, figure it out.
So, Mr. Roberts, you would have permitted the execution of Ms. Baker, and, presumably, you would have rejected Brown vs. Board of Education. And, if I am not mistaken, Texas would still be able to arrest sodomites today.
If fact, Texas can. The Supreme Court may not be as powerful as you think. Texas can throw sodomites in jail, and if they have the money, and if they have good lawyers, and if they have 10 years, they could probably win an appeal.