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The right person for the job?

July 22, 2005 4:40 PM

As Richard Epstein appears to have hinted, he and I have no serious disagreements over John Roberts, over the manner of evaluating qualifications for judges, or, perhaps even what their appropriate jurisprudential philosophy (a term that I prefer over the currently trendy �judicial ideology� favored by Democrat Senators and their advisors such as Richard�s colleague, Cass Sunstein) should be. I wouldn�t actually characterize myself as a libertarian, again as Richard implies, unless we mean by �libertarian� one who simply believes in the liberty the framers of the Constitution sought to guarantee, since I prefer to think of myself as a �paleoconservative,� one who believes the Constitution ought to be interpreted according to the essentially conservative philosophy of the Framers.

A paleoconservative also understands that good government ought to foster an understanding of the duties and responsibilities of citizens as well as their liberty, and thus I might be somewhat more willing to endorse some governmental initiatives than would Richard, but over the years, whenever I�ve listened to Richard or read something he�s written I can�t remember much that I�ve disagreed with. Let me be even clearer on this last point, and let me write (blog?) for a moment in the biographical vein that Richard used in his Wall Street Journal piece. Thirty-two years ago, when I was seeking my first teaching job I was interviewed by the then Dean of USC and his young colleague, Richard Epstein. Richard did most of the talking, in that rapid-fire and dazzling manner we all know so well, I found it impossible to get a word in edgewise, or indeed, to form any coherent responses, and I slunk away from the interview, and, of course, got no USC offer. Richard went on to his distinguished career in Chicago, and I still managed to gain a toehold in the academy, but I have never shed my early awe of Richard, his delivery, and his intellect. Even if I disagreed with him, I�m not sure I would know what to say.

Still, I ought to say something, if only to give us more to talk about, and there is a bit more that can be said about John Roberts and the confirmation process. The question on most bloggers� lips (if blogs have lips) is whether Roberts is a �stealth� candidate, a la Souter (Ann Coulter thinks he is) or whether he�s likely to vote to overturn Roe v. Wade (about which NARAL and PFAW already seem concerned). These are the wrong questions, as Richard so clearly maintains. The questions that ought to be asked are, �Is this a person who really does believe that the tasks of a judge and a legislator are different?� and �Is this a person who displays the kind of learning and integrity that suggests that he or she might actually seek objectively to interpret the Constitution and laws in the manner Alexander Hamilton limned in Federalist 78?� Roberts�s first hearings and his professional track record so far give every indication that he is that sort of person, and indeed proclaim it in a manner that we rarely see in a candidate. We can only hope that the Democrats in the Senate, instead of launching a fishing expedition to uncover some foible that can be adversely spun against the judge, will simply accept the obvious. Judge Roberts has apparently suggested that he�d be reluctant to fasten any label upon himself, so Richard and I don�t know if he�s a libertarian or a paleoconservative, but it does strike me that he�s the right person for the job.




Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute

Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.