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Thursday, July 28, 2005

Geoffrey Stone on Roberts

Geoffrey Stone of the U. Chicago Law School has a piece in the Chicago Tribune today on the nomination of John Roberts to the Supreme Court. In brief, Stone's argument is that this nomination is a "win" for liberals, not because Roberts isn't a conservative, but because he isn't a Clarence Thomas conservative. Stone's argument is that the left should accept Roberts as a smart, talented judge, one who will approach cases fairly, but will not be "doctrinaire" or "originalist."

I applaud Stone's attempt to call off the wolves and see this nomination for what it is: appointing an amazingly talented jurist to the Court. However, I take issue with a few of Stone's assumptions. First, he states that Roberts is "too good a craftsman" to be an "originalist." He labels originalism "vacuous" and "disingenous." We know of course, that Stone would prefer an "evolving" understanding of the provisions of the constitution, that for him, the idol of a judge is William Brennan. But between the two judicial philosophies, which is more disingenous? Which is more vacuous? The vacuousness seems rather obvious: at least originalism is tethered to something, to an attempt to discern the original meaning of the text as passed by our legislture and delegates, and as understood by the people. An evolving constitutional method of interpretation has no such tether, but instead flails about on the wings of public attitude, or more precisely, on the wings of individual judges. And Stone admits, he wants a more compassionate Constitution, one premised on individual dignity and fairness. But from where do these principles emanate? Surely, the Constitution has provisions which serve to ensure fairness, like the due process clause. But I can't conceive of anything more vacuous than a method of interpretation which bases an understanding of due process on some "gut feeling" of fairness, without reference to external guideposts. The only conceivable tether to such a method is one's individual morality, and that seems the most vacuous choice possible as it pertains to a constitutional democracy.

Stone also applauds Roberts' nomination because, since Roberts is no originalist, he thinks he is a pragmatist, and may therefore, learn and evolve (i.e. move left). Stone's vacuousness argument is refuted by himself here. Since Roberts is supposedly "untethered" and "open-minded" we should accept him because he will drift. The vacuous space in Roberts' mind and heart is filled with a sense of fairness and "justice", perhaps learned on the Georgetown cocktail circuit. No. The less vacuous judge, the more tethered judge, the more principled and therefore consistent judge, is the one with an overarching philosophy, a framework to which the facts of particular cases can be applied.

In the end, Stone's editorial reaches the right position: Roberts is qualified, and should be confirmed. However, the subtle digs against a method of constitutional interpretation which attempts to replace "vacuous" methods with something, with anything, is upsetting. To imply that someone is too smart to be an originalist suggests that Justice Thomas, Justice Scalia, Judge Bork, Randy Barnett, and a slew of others are vacuous, unprincipled nitwits. A more "genuine" editorial may have ended with an admission that all too often, constitutional interpretation is guided by pointing to internal guideposts like judges' senses and feelings as opposed to reference to external tethers like history, tradition, and original meaning. If the latter is to be termed "vacuous" by the educational elite, sign me up for nothingness.

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