During his confirmation hearings, John Roberts insisted repeatedly that he not only lacked an ideological agenda, but he also had no judicial “philosophy.”
[Sen. Orrin Hatch] asked [Roberts] whether he is “an originalist, a strict constructionist, a fundamentalist, perfectionist, a majoritarian or minimalist….” Roberts replied that he resists labels and wants to be known only as a modest judge, that is, a judge who does not legislate or execute the laws but simply enforces the law correctly. Hatch was not satisfied and continued: “You are probably eclectic [in] that you would take whatever is the correct way of judging out of each one of those provisions? There may be truths in each one of those positions, and none of them absolutely creates an absolute way of judging.” Roberts replied: “Well, I have said that I do not have an overarching judicial philosophy that I bring to every case.”
Senator Grassley returned to the issue of Roberts’s constitutional philosophy later. He summarized an exchange Roberts had had during the hearings considering his successful nomination to the circuit court. Grassley recalled Roberts as saying then, “I do not have an all-encompassing approach to constitutional interpretation…. I would not hew to a particular school of interpretation, but would rather follow the approach or approaches that seem most suited in the particular case to correctly discerning the meaning of the provision at issue.” (emphasis added)
A majority of the Senate believed him and Roberts is now the Chief Justice. Harriet Miers may have a tougher time with the question — because her leading proponents have made it impossible for her to answer the question the same way.
Texas Supreme Court Justice Nathan Hecht, for example, a noted conservative who’s dated Miers off-and-on for years, scoffed at right-wing concerns about Miers’ ideology.
“I know what her judicial philosophy will be, and when they find out what this president knows about Harriet, they are going to be happy as clams,” Hecht said.
It’s not just Hecht. Bush’s constant references to — and praise for — Miers’ “judicial philosophy” dominated yesterday’s press conference.
“She shares my judicial philosophy…. I’m interested in finding somebody who shares my philosophy today, and will have that same philosophy 20 years from now…. There is not litmus test. What matters to me is her judicial philosophy…. [P]eople will get to see not only her strength of character, but will get a sense of her judicial philosophy.”
When Bush announced John Roberts’ nomination in July, he used the word “philosophy” exactly zero times. A few days later, speaking to the press about the nomination, Bush also never mentioned anything about Roberts’ philosophy. Yesterday, meanwhile, Bush referenced Harriet Miers’ “philosophy” 12 times in a one-hour press conference.
Part of this, I suspect, is to alleviate concerns among Republican activists about Miers’ adherence to a right-wing agenda. The base is worried that Miers is a blank slate so Bush wants everyone to know that she really does have an ideological approach to the law that conservatives will like.
Of course, there’s a flip side to this. Roberts appeared before the Senate Judiciary Committee and could say with a straight face that he has no judicial philosophy and no all-encompassing approach to constitutional interpretation. Miers won’t have that luxury — because her biggest champions have spent the week arguing the opposite.