What do we know about Judge John G. Roberts, Jr?
So, let's see, what have we got on Judge John G. Roberts, Jr. so far?
1) He has shown poor judgement in several instances connected to the announcement of his nomination. In addition to parading his family before the cameras, like he was some candidate for a political office, who wanted to distract us from his lack of personal depth, he co-operated with a lobbying group, Progress for America, which has a rather sordid history of putting out smears on the opponents of those whom they support. I reach this conclusion because it is unlikely that PFA came up with the names, pictures and quotes from laborers subordinate to Roberts' dad in the plant on their own. Never mind that PFA is a very partisan group. They are entitled to support anyone they like. It is the judges who are supposed to be non-partisan.
2) Judge John G. Roberts, Jr. seems to have a very short memory in that he can no longer remember associates from seven years ago. Either that, or his commitment to those associates is very superficial. If, indeed, as is now claimed his inclusion in the membership of the steering committee of the Federalist Society was a mistake, it is a mistake that should have been corrected at the time. Not to have done so demonstrates a certain inattention to detail which does not bode well for a judge who's going to be making life and death decisions--at least as long as the death penalty is on the books.
If there is a memory problem, then that would seem to make a perusal of the documents Judge Roberts prepared in the Reagan/Bush White House even more important. After all, we keep documentary records just for that purpose--because human memory is fallible and often unreliable.
3) Judge John G. Roberts, Jr. has demonstrated a commitment to the principle of "judicial restraint" which counsels that other branches of the government are not to be interfered with. While it seems entirely appropriate to assume that "judicial restraint" refers to a reluctance to interfere in citizens' private lives, that's not what an analysis by Jeffrey Toobin, who's much better acquainted with the law than I, concludes. In any event, if Judge Roberts is reluctant to interfere with the other branches of the government, specifically the executive and the legislative, then that sort of throws the principle of "checks and balances" out the window, doesn't it?
4) Judge John G. Roberts, Jr. seems to be somewhat of a literalist in that he sets great store by the "provisions" of the Constitution. Which probably means that whatever isn't there in black and white, simply doesn't exist. And the verbiage about "rights" left "to the people" is just a sop, a promise to respect individual human rights that doesn't mean anything in real life. Consequently, since citizens don't enjoy any human rights, other than those specified in the Constitution, captives held on foreign soil can't be expected to fare better, as the Judge's recent ruling regarding the detainees on Guantanamo clearly demonstrates.
5) Judge John G. Roberts, Jr. is a strong proponent of the principle of "intent." What that means in regards to individuals who seek to be compensated for an injury inflicted by another is that they have to prove that the injury was inflicted on purpose. As Justice Souter has pointed out, this standard makes it impossible for anyone to get any satisfaction since what's in a person's or corporation's mind is impossible to establish. Moreover, if the offending entity is a government body, whose purpose is presumably the public welfare, the negligent, inattentive or even slightly malicious public servant responsible for causing harm is likely to go unpunished, uncorrected and unrepentant.
So, for example, one might expect that the polluted terrains and waters being left behind as more military facilities are abandoned will remain uncorrected since it is fairly obvious that the US Army, Air Force and Navy never meant to poison their neighbors or their neighbors' children.
While Judge Roberts cannot be questioned on such a hypothetical situation coming before him, since it is likely to be an important issue in the near future, one can extrapolate from his ruling on the case of an employee whose wrists succumbed to carpo tunnel injury and whose employer was found within his rights to simply fire her, because he clearly didn't intend to injure the employee.
While my own quarrel with the principle of "intent" has been prompted by its use in the criminal law to let experienced miscreants escape responsibility for their actions and makes it very difficult for the victims of their actions to get justice, its application to corporate or public entities makes them virtually immune to accountability for their behavior. Again, the principle of "checks and balances" by which we insure that government does not become abusive, seems to be undermined by this interpretation.
7) There has been some public discussion of the conservative legal community's commitment to the principle of "original intent." Most cursory readers of such discussions would probably conclude that courts were trying to figure out what those who wrote the Constitution meant by what they said. While I think it is doubtful that is is possible to make an accurate determination of what someone meant in retrospect, I'm more inclined to think that's not what the "original intent" people are interested in anyway. Rather, their focus is on the "original intent" in setting up a government in the first place and that seems to be related to an assumption that humans, having been tainted by "original sin," are in dire need of being governed to make them behave.
Of course, if that is one's assumption, or the prejudice from which one proceeds, then the general welfare is obviously best served by keeping individuals (especially those that haven't yet been "saved") under tight control. And the notion of government as a social contract which provides benefits to the parts and the whole flies out the window.
Lest it appear that I am dumping on poor Judge John G. Roberts, Jr. let me hasten to assure you that there is nothing personal in the issues that concern me. I'm trying to be as objective as I can and focus on what's in the record, nothing more.
Posted by Hannah at July 28, 2005 09:27 AM