Saturday, July 23, 2005

Revolution Over?

I want to like William Kristol's piece on the selection of John Roberts for the Supreme Court, which argues that conservatives need to know how to govern as much as that they need to know how to change the country. The time for revolution is over, and the time for governing is at hand, according to Kristol. Roberts is an "establishment" conservative, necessary for helping the radicals responsible for overthrowing the liberal orthodoxy govern. Roberts is no Bork, Scalia, or Thomas; rather he is closer to Rehnquist, for whom he clerked. A combination of a Scalia-Thomas wing and a Rehnquist-Roberts wing may constitute a "constitutionalist majority" on the court.

This coalition is desirable because the GOP should be a "big tent" that encompasses anti-establishment (or anti-liberal-establishment) Scalia-Thomas types and more moderate Rehnquist types. The Scalia-Thomas wing is presumably too narrow or not widely appealing enough. Another argument is that a court of five Scalias, though "fun," won't happen.

Kristol's explanation is rather thin or non-existent regarding why the selection of more outspoken "originalists" is bad for the party. Bush, after all, campaigned quite clearly as a conservative who would select judges who would not legislate from the bench. Kristol's establishment/revolutionary dichotomy is attractive in some ways, for a party can't be perpetually in the mode of revolt once it has gained power. Nevertheless, the cause of "originalism" still has a significant distance to traverse before it is the "ruling" principle of interpretation. It's unclear that the GOP is ready to move to "establishment" mode on the court yet.

In any case, I prefer Charles Krauthammer's piece, which argues that Roberts is a "tabula rasa" whose views are not very well known. Moreover, his statement to the Senate Judiciary Committee in 2003 is not very encouraging: "I think I'd have to say that I don't have an overarching, uniform philosophy." In his own way, Krauthammer agrees with Kristol that Roberts is conventional and an "establishment" sort of fellow; but he makes some subtle changes in the description that make us doubt what kind of justice Roberts will be. According to Krauthammer, "Like just about everything else we can say about him, this guess is educated only by the meager record, and by Roberts's traditional, conventional life trajectory. And perhaps even by his opening remarks on national television, where he spoke with reverence of the institution to which he has been nominated -- from which one might infer (now we're really grasping at straws) -- that he might be reluctant to overturn precedent."


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