He may or may not be the next Bill Klem, but at least John Roberts is no Janice Rogers Brown.
OK, these names
are not household words, save perhaps in selected households of the
political left, the political right, and the baseball-obsessed. So
William J. Klem was the first of the
great umpires, the original "Old Arbitrator," umpiring in 18 World
Series in a career that stretched from 1905 to 1941.
Roberts is not an umpire. He is the new chief justice of the United
States. Nonetheless, he told the Senate Judiciary Committee —
before it, and subsequently the full Senate, approved his
nomination — that "judges are like umpires. Umpires
don’t make the rules; they apply them … I will remember
that it’s my job to call balls and strikes and not to pitch
Janice Rogers Brown is not an umpire, either.
She is a judge on the District of Columbia Circuit Court —
and someone whom President Bush could have nominated in
Roberts’ stead. Judge Brown would be far less likely than
Roberts to use the umpire image. Temperamentally, she’s more
the revolutionary, or rather the counter-revolutionary, against
what she has called "the revolution of 1937," the year of "the
triumph of our own socialist revolution."
The notion that
we ever had a triumphant socialist revolution might appear bizarre
to many observers. But Judge Brown is only one of the lawyers,
economists, and right-wing think-tank policy mavens who contend
that there is a "hidden Constitution" or "Constitution in exile"
that was supplanted in 1937 when the Supreme Court upheld both the
Social Security and the Wagner (National Labor Relations) Acts.
According to the counter-revolutionaries, these decisions
were based on an invalid reading of the constitutional clause
giving Congress the power to "regulate commerce … among the
several states." The Founders, they argue, only meant to make the
nation one free-trade zone, not to permit Congress to regulate
private economic activity.
The substantive result of a
narrow interpretation of the Commerce Clause would be to weaken, if
not abolish, federal laws that protect consumers, workers,
minorities and the environment. Those laws are based on
Congress’ power to regulate interstate commerce.
But Judge Roberts, based on his testimony to the Judiciary
Committee, is no counter-revolutionary. He regularly extolled the
virtues of judicial restraint and judicial precedent. He all but
disdained the "originalist" outlook associated with the "hidden
Constitution" viewpoint. And when asked about the Commerce Clause,
he rejected all opportunities to suggest that he would narrow its
Though there were several such questions,
the one most pertinent to this discussion came from Sen. Charles
Schumer, D-N.Y.: "Let me ask you, then, this hypothetical
(question): (Suppose) it came to our attention (that) individuals
were now able to clone certain species of animals, maybe an arroyo
toad (which) didn’t pass over state lines. … Under the
commerce clause, can Congress pass a law banning (such) cloning?"
"It would seem to me," Roberts said, "that Congress can
make a determination that this is an activity … that is going
to have effects on interstate commerce."
That was a yes.
Schumer did not specify the arroyo toad out of some
playful puckishness, a trait with which he is not generally
associated. That species was the subject of a case in which
then-Appeals Court Judge Roberts, dissenting, opined that Congress
could not protect the toad under the Endangered Species Act because
"for reasons of its own (it) lives its entire life in California."
The new chief justice’s history and testimony leave
little doubt that Roberts is a conservative, possibly inclined to
look for reasons to support commercial interests. If the developer
on the mound throws one just above the letter of the environmental
law, Roberts seems more likely to call it a strike than would, say,
Justices Ruth Bader Ginsberg or David Souter.
chin-high? Probably not. Unlike the counter-revolutionaries,
Roberts appears to be capable of being embarrassed — a
desirable characteristic in both the folks in black robes and the
men in blue.
What about Harriet Miers, President
Bush’s choice to replace Justice Sandra Day O’Connor?
Her strike zone remains a complete mystery, and not just because
she has not yet appeared before the Judiciary Committee. She simply
has never held a position in which her constitutional views were
Miers, one might say, is this
administration’s Joey Cora. Cora is not an umpire. He’s
the third-base coach of the Chicago White Sox, the new champions of
the American League.
Miers is the White House counsel.
Like third-base coaches, White House counsels are (a) technicians
rather than policy-makers (relaying the "bunt’’ sign
from the manager; checking the legality of a proposal); (b) largely
unknown unless they mess up (waving home a runner who gets thrown
out; apparently acquiescing to the torture of prisoners); (c)
employed because they toady to the guy who appoints them (the
manager; the president).
Like Roberts, Miers is
conservative. Is she also — like Janice Rogers Brown —
a counter-revolutionary? There is, as of yet, no way to tell.