Analysis of the Roberts confirmation

Roberts cops out a few times in his former testimony (because he was being appointed to the D.C. Circuit) by saying all he had to do was follow the Supremes. That doesn’t mean he would do the same if he was on the Supreme Court.

Mr. ROBERTS. Well, Senator, I don’t know if that’s a flaw for a judicial nominee or not, not to have a comprehensive philosophy about constitutional interpretation, to be able to say, ‘‘I’m an originalist, I’m a textualist, I’m a literalist or this or that.’’ I just don’t feel comfortable with any of those particular labels. One reason is that as the Constitution uses the term ‘‘inferior court judge,’’ I’ll be bound to follow the Supreme Court precedent regardless of what type of constructionist I, personally, might be.
* * *
Senator DURBIN. That is a reasonable answer. It is also a safe answer, and I am not going to question your motive in that answer. I accept it at face value as being an honest answer, but it raises the question that comes up time and again. If this job is so automatic, if the role of a judge is strictly to apply the precedent, then, frankly, I think we would have as many Democrats being proposed by the Bush White House as we do Republicans, but we do not. They understand that it is not automatic, it is not mechanical.

(p. 57-8). So, if this is true of all of Roberts’s answers, then nothing in that transcript means anything. Before this even begins, Leahy admonishes him

It is very easy for somebody up for either a district or a circuit court judgeship to say, ‘‘Well, I have to follow the dictates of the next higher court.’’ But usually when they get to the Circuit Court of Appeals for the District of Columbia, you do not have many cases that get all of the way up to you guys that they are on all fours, on something that the Supreme Court has ruled on. There is hardly any use for it.

(pp. 45-6)