Toobin on John Roberts

Jeffrey Toobin offers a surprisingly hard-edged assessment of the Chief Justice for a New Yorker article:

Roberts’s hard-edged performance at oral argument offers more than just a rhetorical contrast to the rendering of himself that he presented at his confirmation hearing. “Judges are like umpires,” Roberts said at the time. “Umpires don’t make the rules. They apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ballgame to see the umpire.” His jurisprudence as Chief Justice, Roberts said, would be characterized by “modesty and humility.” After four years on the Court, however, Roberts’s record is not that of a humble moderate but, rather, that of a doctrinaire conservative. The kind of humility that Roberts favors reflects a view that the Court should almost always defer to the existing power relationships in society. In every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff. Even more than Scalia, who has embodied judicial conservatism during a generation of service on the Supreme Court, Roberts has served the interests, and reflected the values, of the contemporary Republican Party.

Which I guess is fine. Except insofar as judging I don’t approve of isn’t fine. But I expect presidents I don’t approve of to appoint judges I don’t approve of. What’s not fine was the kind of bizarre slobbering over Roberts from the establishment that preceded his confirmation. It would be one thing if the sensible center had just been saying “look liberals, you have to suck it up; Bush won the election so he’ll get to appoint right-wing judges.” Instead, we were treated to gushing coos over Roberts’ brilliance and moderation for which there was never any evidence.

Nobody wrote any prominent articles slamming him as an intellectual mediocrity who owed his advancement to a certain generic white male handsomeness and his role as a loyal foot soldier in a powerful political movement. I’m not sure it would have made any practical difference in the world if commentators had taken a more realistic view at Roberts back then. But still, folks who called this all wrong would be a lot more credible if they would make some kind of account.