July 20, 2005

Roberts and federalism.

Here's the NYT editorial about the Supreme Court nominee:
If he is a mainstream conservative in the tradition of Justice O'Connor, he should be confirmed. But if on closer inspection he turns out to be an extreme ideologue with an agenda of stripping away important rights, he should not be.

I wonder how many people are buying the idea that O'Connor exemplifies "mainstream conservatism," which the Democrats spent the last few weeks promoting. But "extreme ideologue with an agenda of stripping away important rights" seems to be a relatively easy charge to refute. It doesn't seem to fit anyone with the stature to make make the short list. But I suspect we'll be hearing that overheated phrase again and again by those who want to defeat the nominee.
One of the most important areas for the Senate to explore is Judge Roberts's views on federalism - the issue of how much power the federal government should have. The far right is on a drive to resurrect ancient, and discredited, states' rights theories. If extremists take control of the Supreme Court, we will end up with an America in which the federal government is powerless to protect against air pollution, unsafe working conditions and child labor. There are reasons to be concerned about Judge Roberts on this score. He dissented in an Endangered Species Act case in a way that suggested he might hold an array of environmental laws, and other important federal protections, to be unconstitutional.
The NYT can be trusted to make federalism values sound pernicious -- that is, as long as we're not talking about some very particular case where a state is engaged in an attractive, progressive policy experiment.

I'm concerned that Roberts won't care enough about federalism. He's been very deeply grounded in Washington, D.C. for a long time, and he represented the federal government in lawsuits. Why should he feel allied to the interests of the states?

12 comments:

Nick said...

And since when are Republicans fans of federalism when they're in power? Hello... have people forgotten Raich already?

Ann Althouse said...

Nick, I don't think anyone's forgotten Raich and there's nothing about my post that suggests I have.

Paul said...

In and of itself a skepticism about some features of The Endangered Species Act is not a bad thing.
However, you point to other environmental laws and federal protections which I admittedly, may not familiar. But I do wonder what they are. Using the old standard position, there are laws and Acts that have been changed judicially far beyond the original intent of Congress, or so I'm told and/or so I've read.
I am a ordinary citizen addressing a law professor and it ain't easy. Still, I have read so often about judges misinterpreting The Endangered Species Act that I believe it. Am I making my point at all?

Ann Althouse said...

Paul: The NYT is referring to the potential for the Supreme Court to say that various statutes passed by Congress are beyond the enumerated powers given to Congress in the Constitution. The key power is the Commerce power, and the Court's conservatives in the last decade or so have been willing to say that a few things that are wholly intrastate can't be regulated under the Commerce Power.

Mr. I said...

I think the fact that both sides of the aisle are taking issue with some of Roberts' stances and at the same time praising others, says one thing: He probably is a relatively moderate candidate who probably won't change the dynamic of the Court.

I do agree with you Ann that his involvement with the federal government (as well as advising the Bush campaign during the 2000 recount) might raise some concerns of political influence and allegiance in his decision making. But I don't think you can deny a nominee based on that.

Personally, I think the confirmation process will have Roberts scrutinized heavily but ultimately confirmed. Democrats would be foolish to try and fillibuster his nomination when he clearly is not "extreme" in any way.

Of course, these days who knows what will happen.

alkali said...

There are two flavors of federalism at issue here -- federal-state relations (preemption, federal court oversight of action by state and local governments, etc.), and the limitation of the federal government's powers (Lopez, etc.). Fans of the latter sort of federalism don't necessarily hold any brief for the states.

(If you wanted to be cynical about it, and I sometimes am, you could argue that promoters of the limitation of federal powers are simply averse to regulation in any form, and know that if the federal government can't regulate certain activities it is unlikely that they will be regulated at all.)

Paul said...

If something is wholly intrastate then and I guess if challenged, it would be for courts to decide, it would seem the conservatives are incorrect?
Then putting a conservative on the court whose views mesh with other conservatives would erode congressional powers that are rightly theirs. Even prohibit the executive branch from enforcing certain provisions of The Commerce Act and other laws?
Would you view this as a bad thing or the court correcting past decisions that may have read more power into our laws than Congress intended be there?
(No more questions, I promise)

Dirty Harry said...

Roberts strikes me as a guy who's young enough to have learned from and modulate his behavior based on what he saw happen to Bork and Thomas.

This is an ambitious man who has probably wanted to be on the court from college age. Understanding how the modern confirmation process works early gives him an advantage.

I suspect he's another Clarence Thomas. I sure hope so. I also suspect, from what little I've read, that he's been careful in his approach to his paper trail not to leave a landmine that might undo him.

Scipio said...

Bob Bennett said nice things about Roberts on NPR this morning. The usual suspects (Schumer, Kennedy, Boxer) will make a lot of noise and then cave. Both parties will continue to try conning the American people re: judicial activism, which Sen. Leahy would not shut up about this morning on NPR. I would take this opportunity to remind Sen. Leahy that without judicial activism Plessy v. Ferguson would still be good law. Perhaps we need better terms for debate, and by better terms, I mean terms with acknowledged and accepted meanings.

Of course, if we had those terms, then mental giants like Santorum, Kennedy, Leahy, and Lott, would have to address the merits of judicial nominations, which, by virtue of their election to the Senate, they are woefully unqualified to do.

C.D. said...

"If extremists take control of the Supreme Court, we will end up with an America in which the federal government is powerless to protect against air pollution, unsafe working conditions and child labor."

As if Wyoming is ready to send 6-year-olds to the mines, but is only being restrained by the sensible Supreme Court. Does anybody really believe this?

Chrees said...

Can you imagine the NYT editorializing like this?

"But if on closer inspection he turns out to be an extreme ideologue with an agenda of granting rights that don't exist in the Constitution, he should not be."

Nah, me either.

Paul said...

You have to admit, the NYT has no shame.