John Roberts's Judicial Temperament

When John Roberts worked for the Justice Department:

Roberts on Woman Lawyers: ...in reply to a suggestion from Linda Chavez, then the White House's director of public liaison. Chavez had proposed entering her deputy, Linda Arey, in a contest sponsored by the Clairol shampoo company to honor women who had changed their lives after age 30.... Roberts noted that... Arey had "encouraged many former homemakers to enter law school and become lawyers." Roberts said in his memo that he saw no legal objection to her taking part in the Clairol contest. Then he added a personal aside: "Some might question whether encouraging homemakers to become lawyers contributes to the common good, but I suppose that is for the judges to decide"...

Roberts on the Kickapoo Indians: In a January 1982 memo he wrote about legislation that he said would "heap benefits" on the Texas Band of Kickapoo Indians. Explaining their history, Roberts wrote, "The Kickapoos, originally from the Great Lakes area, did not stop running from their encounter with Europeans until they reached Mexico, where they now hold 17,000 acres of land" and "provide migrant labor in the U.S." Roberts said he had no legal objections to the bill, which he said was consistent with administration policy, but added that its "provisions seem overly generous -- particularly in light of the fact that these are, generally speaking, Mexican Indians and not American Indians"...

Roberts on the Religious Right: John Lofton... editor of the Conservative Digest... "I was to meet with the Attorney General William French Smith," Lofton notes, but before that happened, he says John Roberts wrote Smith a memo, instructing him "as to how to obfuscate the issue, basically -- how to answer the questions that I would raise." In the memo, Roberts advised the administration to distance itself from the Religious Right, and he went on to say that Christian leader Paul Weyrich was "no friend of ours," Lofton adds. However, he protests, "All Weyrich was trying to do, and myself and many other conservatives, was to make Reagan and his administration keep the promises they made when they were elected. That's all"...

Roberts on National ID Cards: As a legal aide in the Reagan administration in 1983, Supreme Court nominee John G. Roberts Jr. declared that he would support creating a national identification card in order to combat "the real threat to our social fabric posed by uncontrolled immigration"...

Roberts on Girl Scouts: May 7, 1985, Roberts addressed the ethics of allowing a Falls Church Girl Scout to meet the president in the midst of the annual cookie drive. "Elizabeth . . . has sold some 10,000 boxes and would like to sell one to the President. The little huckster thinks the President would like the Samoas," he wrote...

Roberts on Temperature Measurement: In reviewing a proposed economic message in 1986 in which Mr. Reagan was to say, "I just turned 75 today, but remember that's only 30 Celsius," Mr. Roberts noted that 75 Fahrenheit is actually 23.9 Celsius...

Just who in the Reagan White House thought that 75F was 30C? C = (5/9)(F-32): there's no plausible arithmetic mistake you can make to get from 75 to 30.

And we have ultra-conservative Eagle Forum President Phyllis Schlafly saying that in 1985 Roberts was "a young bachelor" who "hadn't seen a whole lot of life at that point." Schlafly goes on to say, "I knew Lyn Arey. She is a fine woman." But on Roberts's contempt for Arey: "I don't think that disqualifies [Roberts]. I think he got married to a feminist; he's learned a lot."

He was then 32.

When do right-wing Republican women think men grow up (if they ever do grow up)?

It appears that Phyllis Schlafly doesn't endorse Roberts any more (but doesn't think him "disqualified"). Linda Chavez and Linda Arey appear to be slent.

Comments

[Mike Maltz]

On that first comment of Roberts you quote: "Some might question whether encouraging homemakers to become lawyers contributes to the common good, but I suppose that is for the judges to decide"...

I'm no fan of his politics, but I think that Roberts was saying something that Charles Peters said some years ago in the Washington Monthly (I paraphrase), about future generations wondering why we took the best and brightest of our youth and encouraged them to chase each other's tails around, i.e., become lawyers.

[Brad DeLong]

Charles Peters's point is not something that practicing lawyers say, or think.

I know male right-wing activists--the kind who become Reagan administration junior staffers--of that time period. It's a lawyer joke, and it's a women joke. A better paraphrase would be: "A woman's place is in the kitchen, but maybe judges will like the eye-candy."

That said, it's somewhat reassuring that Roberts is in there on the side of reality-based temperature conversions. But not a judicial temperament. Not a judicial temperament at all.

[theCoach]

I read it the way Mike Malz did, especially combined with the Samoas comment.

[Ugh]

Well, he did end up marrying a lawyer, FWIW.

[Jonathan W. King]

Brad DeLong writes:
>
> That said, it's somewhat reassuring that Roberts is in there on the side of reality-
> based temperature conversions. But not a judicial temperament. Not a judicial
> temperament at all.

Well...these comments are pretty odd. But an interesting thing about them is that they all came from communications and sources that I think would have reasonably been expected not to be read widely or maybe at all. I'd like to think you couldn't go back to (say) stuff I wrote in the 80s or even Usenet posts from the 90s and find stuff this icky, but I do think there would be some stuff that would look pretty bad out of context and part of a document dump. Meanwhile, it never ceases to amaze me what people whom I otherwise really respect are able to come up with at one time or another. Personally, I thought a lot of the truly unfair stuff that came down on Clinton's head was essentially soundbite-mining his entire public and private life, so I'm not that eager to see more of this happen just because the person who would be hurt is somebody I don't agree with.

Which brings us to things he really did say and mean to say in public. I saw several minutes of video footage of the guy on (I think) the News Hour several days ago, and my thoughts on seeing that was "Gleek; that dude is as conservative on some things as they come, but he is shockingly well-prepared and very good at presenting his arguments." I'm actually annoyed that he was nominated, not because I don't think he has a judicial temperment, but because he's likely to be really good and quite persuasive among his colleagues once he's on the bench. And, alas, because I'm pretty sure his opinions and point of view don't look much like mine.

[Brad DeLong]

Re: "these comments are pretty odd. But an interesting thing about them is that they all came from communications and sources that I think would have reasonably been expected not to be read widely or maybe at all. I'd like to think you couldn't go back to (say) stuff I wrote in the 80s or even Usenet posts from the 90s and find stuff this icky, but I do think there would be some stuff that would look pretty bad out of context and part of a document dump."

Do you think you have the temperament to be a good judge?

[maryLou]

I read some of his comments (particularly the first one, about housewives to lawyers) as being a lame attempt at humor. The one about Kickapoos seems odd, since he went to the trouble of pointing out that they started out as Great Lakes residents, which is quite far removed from Mexico.

[Esq]

It sounds like typical lawyer humor, which is to say bad. Ever listen to the recordings of Supreme Court oral argument? Did you find any humor whatsoever in the "jokes" that got laughter in the Courtroom?

Why do lawyers marry other lawyers?

"Cause no one else will put up with them"

[PaulC]

I don't think Reagan or his speechwriters got to 30 using arithmetic. You start with the well known fact that Celsius would give you a lower value (which it does until you get to -40) and pick the number that best fits the quip. I could argue that 30 sounds wittier in two ways: it's shorter to say, and any age under thirty sounds too junior for a president.

Of course, it's a dumb joke because it IS wrong--and wouldn't be that great anyway--but most listeners wouldn't notice or care. Rhetorically it probably does its job.

If the subtext is really to gloat over Reagan's disbanding of the Metric Board in 1982 (http://lamar.colostate.edu/~hillger/dates.htm) it may be funnier in a Reaganite sense to get it wrong.

Finally, given that Roberts saw fit to round 23 8/9 up to 23.9, would it be pedantic of me to say his answer is also wrong? 75 was given with two significant digits, and the correct approximation is therefore 24.

[Robert Silvey]

The plausible arithemetic mistake to turn 75F to 30C is to subtract 21 (not 32) from the F value. On a numeric keypad, the fingers accidentally slip one key to the left (an unlikely mistake for a Reaganite, I admit), and the equation becomes C = (5/9)(F-21).

[Brad DeLong]

Re: "The one about Kickapoos seems odd..."

The subtext of the Kickapoo comment is that they are cowards who ran out of the U.S. into Mexico

[Tom Maguire]

I am taking as a hint that Brad is filing this under key words including "funny".

The first one, about homemakers becoming lawyers, is surely a quip dating back to at least "First, let's kill all the lawyers".

"The little huckster" is obviously meant to be funny, and depending on the daily office atmosphere, maybe it was.

The Kickapoo anecdote is clearly not PC, but his "didn't stop running" phrase reminds me of the Old Battle of New Orleans song - maybe Roberts was a fan.

Well, he is being nominated to the Supreme Court, not Saturday Night Live.

[Stuart Buck]

As I commented on my blog [http://stuartbuck.blogspot.com/2005/08/roberts.html]:

It could hardly be any clearer that Roberts wasn't denigrating women, he wasn't saying that women belong in the home, or anything of the sort: *He was making a lawyer joke*. If it needs to be spelled out, he was suggesting that lawyers are so disputatious and bad for society that we shouldn't be encouraging more people (of any sort) to become lawyers. The context happened to involve homemakers, but the joke would work just as well if it had been truck drivers or trash collectors or any other sort of occupation ("Some might question whether encouraging janitors to become lawyers contributes to the common good").

Of course, given that Roberts is a lawyer himself, he was merely showing a self-deprecating sense of humor. And for this he is to be pilloried 20 years later? Good heavens.

[Oberon]

While I would rather see a liberal pro-choice nominee to the Supreme Court, I can hardly fault Roberts for a few un-P.C. comments out of 1000s of documents he wrote 20 years ago.

"Some might question whether encouraging homemakers to become lawyers contributes to the common good, but I suppose that is for the judges to decide"...

Gee, a little self-deprecating lawyer humor. BFD.

[beth]

Not that I think I'm going to be a fan of his decisions should he be approved for the Supreme Court, but I read most of these the same way I read his comment on the toad in California.... more evidence of a somewhat odd sense of humor that doesn't transfer to print especially well.

[coriolis]

I was in agreement that these anecdotes only reveal that Roberts has a lame sense humour until I got to this:
"The Kickapoos, originally from the Great Lakes area, did not stop running from their encounter with Europeans until they reached Mexico..."

This is an unconscionable description for what was essentially genocide.

[Cal]

I must finally nitpick with the Professor. Who cares whether 75 converts into 23.9 or 30 or 52. It was a JOKE. YEARS do not convert into a temperature. Reagan was making a joke about being old. He was transparently mixing the two concepts to make a joke. No one in the audience was going to call Reagan on the math. They were just going to laugh at him making light of his advanced age. (If anything, you could argue that this was a sign of his Alzheimers.) The passage shows what a prig bore nit picking fuddy duddy Roberts was (and based on how he allows his children to be dressed for press conferences, still is) for making the observation in the first place. As for our good Professor, who cares if anyone with even a modicum of mental math ability could not make the error. IT WAS A JOKE! IT WAS DELIBERATELY NONSENSICAL.

[Tim]

between his characterization of indian migration and the national id card issue, seems roberts just doesn't really like immigrants or at least those not considered typical americans. a far cry removed from alberto gonzales, the early front runner

[lawyer]

"Charles Peters's point is not something that practicing lawyers say, or think."

Uh, Brad, last time I checked, you weren't a lawyer. I, however, am a lawyer. I read it immediately as a lawyer joke, and most of my colleagues read it the same way. Yes, we are a pathetic, self-deprecating lot, it is true.

[db]

"I was in agreement that these anecdotes only reveal that Roberts has a lame sense humour until I got to this:
"The Kickapoos, originally from the Great Lakes area, did not stop running from their encounter with Europeans until they reached Mexico..."

This is an unconscionable description for what was essentially genocide."

Actually, based on the Wikipedia entry for the Kikapoo, what Roberts wrote seems to have been largely accurate:

"After pressure from colonists, the tribe moved west, resisting by retreating rather than assimilating or fighting. They ceded their land east of the Mississippi River by treaty and reached Missouri around 1820; some of the tribe remained in Illinois and were forced out by the US military in 1834... Many moved on from Missouri in the 1830s, and split, heading south and west into Kansas and Texas. The US government moved them several times more, sending the tribe in Missouri to a reservation in Kansas in the late 1830s. A large group moved into northern Mexico around 1850, joining with smaller groups already residing in the state of Coahuila; more Kickapoo followed them into Mexico in 1857 and 1863. When some attempted to return from Mexico they were sent to Oklahoma."

[bailey]

What about Roberts & Corporation rights? I would hope a strict Constructionist would question the 1868 Supremes de facto ruling that "accepts" that Corporations are due the same rights as individuals.
It's all relative folks, Alice had it right.

[Thomas J. Newton]

"When do right-wing Republican women think men grow up (if they ever do grow up)?"

After they give up drinking and make Jesus Christ their personal savior?

[Big Al]

So "Lil Abner", was in part factual?

[Ugh]

"A better paraphrase would be: 'A woman's place is in the kitchen, but maybe judges will like the eye-candy.'"

Uh, Brad, he's referring to the judges in the Clairol contest, not the ones wearing black robes pounding gavels.

[scottfromca]

John Roberts is so handsome! I think he'd make a fine SCOTUS judge. Is he married? I'm always in the market for a fine looking, employed man who wants a 385lbs. drag queen lover. I could make him very happy. ;-)

[PaulC]

> Actually, based on the Wikipedia entry for the Kikapoo, what Roberts wrote seems to have been largely accurate

True or not, what exactly is Roberts getting at? Are the Kickapoo to be condemned for seeking safety? Is Mexico to be condemned for its inability (or maybe even reluctance) to harass the fleeing tribe as effectively as the US?

It's hard to read this as anything other than a sort of gloating over the displacement of the Indians. The fact that Roberts could find humor as late as 1982 in the treatment of Native Americans does say something about him.

[aiontay]

You’d think by this point in life, I’d be fairly inured to the appalling ignorance regarding American Indians exhibited by the general public, but after reading Robert’s comments regarding the Kickapoos, I guess I’m not. Maybe I’m a bit sensitive since I got Kickapoos friends and relatives by marriage, and since I’ve always respected them for their determination to maintain their culture, traditions, language and religion despite continued interference from the Whites.

Roberts is wrong to characterize this determination to avoid interference as “running away.” If anything, it was a fighting withdrawal. The Kickapoos were some of the staunchest opponents of British and later American encroachment on Indian land east of the Mississippi-they were ardent supporters of Tecumseh and his brother the Prophet, and even after removal to the west, they weren’t afraid to fight. The majority of Kickapoo men, along with the Shawnees and Delawares, joined the Kansas regiments during the Civil War. During the Civil War, one group of Kickapoos that got fed up with usual White meddling left to join a group of Kickapoos already living in Mexico, and on their way across west Texas, were attacked by a much larger group of Texas soldiers intent on stealing their horses, as Texans were wont to do. Despite being outnumbered and having to defend their women and children, the Kickapoos inflicted heavy casualties on their attackers. In Mexico, they protected the northern border from raids by Apaches, Comanches, my Kiowa ancestors and Texans.

As for them being “Mexican Indians”, well that pretty much runs counter to US policy since about, oh, 1800. The US consistently tried to entice and entreat the Kickapoos in Mexico to return to the US (even back when Mexico included what is now the state of Texas), and when that didn’t work sent the US Army across the border to attack them and forcibly move some of them to a reservation in Oklahoma. Furthermore, the as I said, the Kickapoos have above all tried to avoid interference in their affairs, and therefore have never seen international borders as being of overriding importance. There has always been quite a bit of visitation between the Kickapoos here in Oklahoma and the ones in Mexico, and plenty of them have family in both places; the current Oklahoma tribal chairman was born in Mexico.

[save_the_rustbelt]

My wife says men never grow up.

She thinks Lorena Bobbitt is a saint, so who am I to disagree?

I'm glad no one remmembers my jokes from the 80s, 'cause I don't, and they were probably preety lame.

[coriolis]

db:
were forced out by the US military in 1834
The US government moved them several times more
sending the tribe in Missouri to a reservation in Kansas
When some attempted to return from Mexico they were sent to Oklahoma.

Wikipedia:
Generally speaking, genocide does not necessarily mean the immediate destruction of a nation, except when accomplished by mass killings of all members of a nation. It is intended rather to signify a coordinated plan of different actions aiming at the destruction of essential foundations of the life of national groups, with the aim of annihilating the groups themselves. The objectives of such a plan would be the disintegration of the political and social institutions, of culture, language, national feelings, religion, and the economic existence of national groups, and the destruction of the personal security, liberty, health, dignity, and even the lives of the individuals belonging to such groups. - Raphael Lemkin.

[A. Zarkov]

Yes I think Roberts is simply making a lawyer joke, but there is a serious side.

According to the American Bar Association:

“A candidate should possess a judicial temperament, which includes common sense, compassion, decisiveness, firmness, humility, open-mindedness, patience, tact and understanding.”

No one with any common sense would encourage a 30+ homemaker to enter law school. Becoming a successful lawyer is a brutally competitive process. It helps a lot to have some or all of the following: (1) acceptance at a tier 1 law school; (2) a law-school GPA above 3.5; (3) externship with a federal judge; (4) being on Law Review; (5) clerkship with a federal judge; (6) externship in a big law firm or a regulatory federal agency.

The failure rate for the February 2005 California State Bar exam was 60%, and this was a good year. For ABA certified California law the failure rate was 40%. Going to law school is even bad for your health, Roberts is purported to have fainted from exhaustion after completing his bar exam.

[Robert Waldmann]

"Just who in the Reagan White House thought that 75F was 30C? C = (5/9)(F-32):" Must be the guy who said "Wasn't Modigliani the guy who painted the Sistine chapel" (Larry Speakes). Robert Silver's proposal is brilliant. On Kickapoos, I think the quote shows that Roberts doesn't have as lame an un pc sense of humor as me. Off the record, I don't think I could have resisted commenting that the person who proposed this program must have been hitting the Kickapoo joy juice pretty hard. Dear Tom McGuire: I thought of you when the "where are conservative bloggers with a sense of humor" line was floating around the left blogosphere. I base this on your "which Hoover" joke in a comment here. Keep up the lonely struggle.

[Julian Elson]

I don't see why the "homemakers" comment can't be both a lawyer joke AND a sexist joke. Can't it be a sexist lawyer joke?

[Michael Robinson]

Jesus Horatio Christ. The man has a sense of irony. That's a good thing.

Rules for George W. Bush Supreme Court nominees:
1. Earnest ideological automatons: bad
2. Self-deprecating, understated ironists, unafraid of sacred cows: good

Good lord, he poked fun at the Girl Scouts and Reagan-era innumeracy. He stiffed the religious right. If he were the nominee of a Democratic president, the right wing would pillory him.

[Jonathan W. King]

Brad DeLong writes:
>
> Do you think you have the temperament to be a good judge?

I'm not sure what to think of the emphasis placed on "judicial temperment", since it seems to me that an extremely important characteristic of good judges is not that they are at all places and times fair and kindly or whatever else you put on the list, but that they are able to put any and all of their personal baggage aside while they are doing their job. So one reason why Antonin Scalia is such a horrible judge is precisely because he not only makes no attempt to do this, and then goes out and berates his fellow justices. Meanwhile, lawyers in general are basically trained to be able to say almost anything convincingly depending on who is paying; they evidently "compartmentalize" really well.

So from that perspective, do I think I'd be a good judge? Or even a good lawyer? Probably not. The few times I've ever read through legal transcripts of proceedings or briefs, I find myself having to suppress the urge to say "Bull****" or "cut the carp" every 3 sentences or so. Honestly, the legal system worships a certain form of dingbat kabuki that would drive me insane.

Not so for Roberts; he's obviously a really good lawyer, and every other lawyer I've heard talk about him can't help but mentioning that he is really good. As a judge, I guess there's less to go on, but the ABA gave its stamp of approval (which they didn't do for Thomas, and likely wouldn't have done if asked to rate several other Bush appointees).

And this is what I find frustrating. Looking just at his legal career and his public statements about legal issues, I know full well I'm not going to love having him on the court. I just don't see these lame comments as being that important, or likely that predictive of how good a justice he will be.

[Cal]

This seems, to me, to be a good comment on Roberts and goes toward the question Prof. DeLong just posed:

Earlier this week, William Raspberry wrote a column on Roberts, essentially objecting to his class background:

The second thing about balance came from a friend -- black, conservative and Republican -- who was laying out the reasons he opposes the Roberts nomination.

It isn't his conservatism, my friend said, but the too-smooth path by which Roberts has arrived at this juncture. Son of a wealthy steel executive, Roberts attended private schools, Harvard and Harvard Law School, then held a federal appeals court clerkship, followed a year later by a clerkship with Supreme Court Justice (now Chief Justice) William Rehnquist.

He then was named special assistant to the U.S. attorney general, and associate counsel to the president (at age 27) before joining one of Washington's top law firms. Then Roberts went to the office of the solicitor general of the United States and, for the past two years, a seat on the U.S. Court of Appeals for the D.C. Circuit.

The point: Nothing in that glide path suggests exposure to anything that might temper his conservative philosophy with real-life exposure to the problems and concerns of ordinary men and women. Roberts is undeniably bright, said my friend, but his life has been one of quite extraordinary privilege.

And then it occurred to me: Roberts's life has been amazingly like that of the man who wants to put him on the court -- but with better grades.

In my 45 years I have observed a callous insentivity in some of those raised in the country club class into which I put both Roberts and our President.

[Martin]

While I would prefer a more moderate candidate, I think that calling a girl scout cookie seller a "little huckster" in an official document is sufficient, by itself, to justify confirmation.

(This is so independent of the genuine, if modest, contribution that girl scout cookie sales make to American culture and cuisine.)

[liberal]

Cal wrote, "It isn't his conservatism, my friend said, but the too-smooth path by which Roberts has arrived at this juncture."

I disagree with that. I don't see how someone's personal experience is determinative of their viewpoint, either in principle or based on the data we have of past SC appointments.

I *do* think Roberts is far-right and out of the mainstream. His comments on supporting limiting judicial review (by Congressional fiat) automatically disqualify him, IMHO.

Not that I think the Democrats should filibuster him. Rather, they should ask very difficult questions re jurisprudence (I'm mainly interested in how his principles apply to _Griswold v. CT_, _Brown v. Board of Education_, and issues of federalism and economic regulation). Then I think they should vote "no".

If they vote yes, the next time Bush or whoever nominates someone who's extreme right, the Republicans will be able to say "but you voted for Roberts".

[liberal]

Jonathan W. King wrote, "I just don't see these lame comments as being that important, or likely that predictive of how good a justice he will be."

There's plenty in his record that allows one to make a reasonable prediction that he'll be an atrocious justice.

[piotr]

In one fell swoop Roberts offended little girls and hucksters (a.k.a. bearers of enterpreneurial spirits), two cornerstones of American values.

More seriously, his sense of humor makes me afraid that he thinks like Scalia who is a smart alec masquerading as "originalist".

[Betsy L. Angert]

Dear Brad . . .

I too have found the Roberts record a fascinating folly. I hugely appreciate your research and will refer to it in what I have written thus far, and again, in a planned future missive. There is so much to discover of the man behind the robes. The upcoming hearings should be quite an adventure.

I invite you to read some of my writings on this complex character. Please peruse and comment on,
JOHN G. ROBERTS, THE VOICE OF RONALD REAGAN ©
ROBERTS RECORD, FLOOD OF FILES, AWASH WITH WHAT IS MISSING ©

Betsy L. Angert Be-Think