In July 2005, against the objections of many conservatives, I penned a column excoriating President Bush for selecting Judge John Roberts as his candidate for Chief Justice of the Supreme Court. “President Bush’s Roberts pick disappoints,” I wrote:
On Tuesday evening, President Bush nominated Judge John G. Roberts Jr. to the Supreme Court of the United States. "He will strictly apply the Constitution and laws, not legislate from the bench," Bush stated of Roberts. Conservatives immediately leapt on the Roberts bandwagon, echoing Bush's sentiments …
[I]t is shocking to watch many constitutional originalists and textualists abandon their philosophies in favor of cheap politics.
Roberts is not an originalist. There is nothing in his very short jurisprudential record to indicate that his judicial philosophy involves strict fidelity to the original meaning of the Constitution. He is not Antonin Scalia, nor is he Clarence Thomas. At best, he is William Rehnquist, for whom he once clerked. While Rehnquist has been a steady political conservative on the bench, the bench should not be about political persuasion: It should be about upholding the explicit words of our Founding Fathers. There is nothing to indicate that Roberts prioritizes the words of the Constitution above other, more immediate political concerns …
President Bush had the once-in-a-presidency opportunity to nominate a clear originalist. Instead, he abandoned absolute adherence to the Constitution in favor of political expedience.
Now, I wasn’t a prophet or a genius. I was a first-year student at Harvard Law School when I wrote these words. I knew that Roberts was a bad pick because he didn’t have a proven track record of adherence to the Constitution. He was picked by President Bush because Bush knew he didn’t have a track record – and he knew that Roberts would sail through the confirmation process without a hitch.
That should have been an indicator that Roberts was a rotten pick. Nobody doubted Robert Bork’s originalist credentials. Nobody doubted Clarence Thomas’. Nobody doubts Judge Janice Rogers Brown’s. But nobody had any reason to buy into Roberts as an originalist. Yet they did.
They did so because it’s all too easy to get caught up in adherence to a political leader who seems to share your values, like President Bush. “Trust him” is an easy way to end a debate. But there was no reason to trust Bush, since he wasn’t a Constitutional conservative – he’d said himself that he signed campaign finance reform into law despite his own objections about its constitutionality.
So now, thanks to President Bush and the conservative clique that trusted him, we have a Chief Justice who has proved himself to be a feckless political manipulator, someone more interested in having lunch with Justice Ginsburg than in upholding clear Constitutional violations. And we’ve got him for the next three decades, at minimum.