PEBO Pays Respects to Supreme Court Chief Justice He Voted Against

By Lee Speigel

Jan 14, 2009 9:17pm

ABC NEWS POLITICAL DIRECTOR DAVID CHALIAN WRITES: Photo-journalist-turned-White-House-photographer, Pete Souza, is not waiting for the clock to strike noon on the 20th of January to begin documenting the 44th President’s assumption of power.  President-Elect Obama’s historic visit to the United States Supreme Court was closed to news cameras today, but a few of Mr. Souza’s images have been publicly released by the transition team. This one image of President-Elect Obama with Chief Justice John Roberts was particularly striking because of then Sen. Obama’s decision to vote against Roberts’ nomination. Despite it taking place only 8 or 9 months after he arrived in the United Sates Senate, it is that vote — probably more than any other because of the hefty political ramifications — that signaled his desire to run for president at some point in the future.

In fact, this August 2007 profile of Obama’s Senate chief of staff Pete Rouse by the Washington Post’s Perry Bacon has Obama conceding that it was Rouse’s ability to look around corners at potential political pitfalls — such as a vote to confirm Roberts — that was Rouse’s special appeal.

"Sen. Barack Obama had hired Pete Rouse for just such a moment.

"It was the fall of 2005, and the celebrated young senator — still new to Capitol Hill but aware of his prospects for higher office — was thinking about voting to confirm John G. Roberts Jr. as chief justice. Talking with his aides, the Illinois Democrat expressed admiration for Roberts’s intellect. Besides, Obama said, if he were president he wouldn’t want his judicial nominees opposed simply on ideological grounds."

"And then Rouse, his chief of staff, spoke up. This was no Harvard moot-court exercise, he said. If Obama voted for Roberts, Rouse told him, people would remind him of that every time the Supreme Court issued another conservative ruling, something that could cripple a future presidential run. Obama took it in. And when the roll was called, he voted no."

"’Pete’s very good at looking around the corners of decisions and playing out the implications of them,’ Obama said an interview when asked about that discussion. ‘He’s been around long enough that he can recognize problems and pitfalls a lot quicker than others can.’"

**

In his September 2005 remarks on the Senate floor, Sen. Obama explained how a vote against Roberts perhaps felt like a vote cutting against his natural grain, but he ultimately found Roberts’ actions while serving in Ronald Reagan’s White House and later in the Solicitor General’s office cause for voting against his nomination.  Unsurprisingly, Sen. Obama did not include any raw political calculation in his statement.

Here is a part of how Obama explained his vote:

"I am sorely tempted to vote for Judge Roberts based on my study of his resume, his conduct during the hearings, and a conversation I had with him yesterday afternoon.

"There is absolutely no doubt in my mind Judge Roberts is qualified to sit on the highest court in the land. Moreover, he seems to have the comportment and the temperament that makes for a good judge. He is humble, he is personally decent, and he appears to be respectful of different points of view. It is absolutely clear to me that Judge Roberts truly loves the law. He couldn’t have achieved his excellent record as an advocate before the Supreme Court without that passion for the law, and it became apparent to me in our conversation that he does, in fact, deeply respect the basic precepts that go into deciding 95 percent of the cases that come before the Federal court — adherence to precedence, a certain modesty in reading statutes and constitutional text, a respect for procedural regularity, and an impartiality in presiding over the adversarial system. All of these characteristics make me want to vote for Judge Roberts.

"The problem I face — a problem that has been voiced by some of my other colleagues, both those who are voting for Mr. Roberts and those who are voting against Mr. Roberts — is that while adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95 percent of the cases that come before a court, so that both a Scalia and a Ginsburg will arrive at the same place most of the time on those 95 percent of the cases — what matters on the Supreme Court is those 5 percent of cases that are truly difficult. In those cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile can only be determined on the basis of one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.

"In those 5 percent of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision. In those circumstances, your decisions about whether affirmative action is an appropriate response to the history of discrimination in this country or whether a general right of privacy encompasses a more specific right of women to control their reproductive decisions or whether the commerce clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce, whether a person who is disabled has the right to be accommodated so they can work alongside those who are nondisabled — in those difficult cases, the critical ingredient is supplied by what is in the judge’s heart.

"I talked to Judge Roberts about this. Judge Roberts confessed that, unlike maybe professional politicians, it is not easy for him to talk about his values and his deeper feelings. That is not how he is trained. He did say he doesn’t like bullies and has always viewed the law as a way of evening out the playing field between the strong and the weak.

"I was impressed with that statement because I view the law in much the same way. The problem I had is that when I examined Judge Roberts’ record and history of public service, it is my personal estimation that he has far more often used his formidable skills on behalf of the strong in opposition to the weak. In his work in the White House and the Solicitor General’s Office, he seemed to have consistently sided with those who were dismissive of efforts to eradicate the remnants of racial discrimination in our political process. In these same positions, he seemed dismissive of the concerns that it is harder to make it in this world and in this economy when you are a woman rather than a man.

"I want to take Judge Roberts at his word that he doesn’t like bullies and he sees the law and the Court as a means of evening the playing field between the strong and the weak. But given the gravity of the position to which he will undoubtedly ascend and the gravity of the decisions in which he will undoubtedly participate during his tenure on the Court, I ultimately have to give more weight to his deeds and the overarching political philosophy that he appears to have shared with those in power than to the assuring words that he provided me in our meeting.

"The bottom line is this: I will be voting against John Roberts’ nomination. I do so with considerable reticence. I hope that I am wrong."

- ABC News Political Director David Chalian

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