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How not to support John Roberts

Some of his most vocal backers show how to do his nomination more harm than good: portray him as robotically committed to a checklist of results desired by conservatives. The Committee for Justice seems to imagine that if confirmed "Roberts won't allow bureaucrats to seize ordinary people's private property", although the use of eminent domain powers on behalf of genuinely public uses is plainly contemplated by the Constitution and is not the subject of any controversy among the current Justices. And it claims he "won't favor criminals' rights over victims' rights", although like most judges Roberts has shown himself perfectly willing to rule in favor of criminal defendants who show their rights to have been violated, and although the Constitution, as it happens, has much more to say about the rights of criminal defendants than about those of crime victims.

The predominant tone of Judge Roberts's own opinions and in-house Justice memos -- calm, wry, and civilized -- could hardly stand in more contrast to the tone of some of the support material being generated on his behalf.

More: Sean Rushton at the Committee for Justice writes in to respond:

I think we can justify a checklist on grounds that as a judicial conservative who will strictly apply the Constitution, John Roberts is likely NOT to engage in the sort of activism associated with the court's liberal wing. Applying the Constitution faithfully is not the sort of results-driven reasoning associated with the Left, but I think conservatives do our cause a disservice by defending nominees solely on process and philosophy. Given the Left's policy-specific charges on civil rights, women's rights, environmental protection, etc, I think the public needs a clearer sense of what good things to expect from a conservative, if only in terms of what he won't do.

As to eminent domain, I am aware our formulation was simplistic, but I think the general public will understand it as a reference to Kelo, not to legitimate eminent domain for true public use.

On criminal rights, again, we plead guilty to simplifying a complex issue. But with the death penalty under assault, the war on terror under scrutiny, and other, past decisions that have weakened government's ability to bring criminals to justice, we think the point is rhetorical but basically accurate.

The purpose of this language is to encourage less lawyerly, sharper debate against the Left's results-driven, populist rhetoric. It is not aimed at lawyers and scholars so much as the easily confused media and regular folks who often find the Right's position incomprehensible next to the Left's.



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.