The President and the Chief Justice: An ironic history

Jul 11, 2012

Of all of the hyper-partisan episodes in the long political career of President Barack Obama, there is one that strikes me as being historically ironic.

In 2005, the then-junior Senator from Illinois voted against the confirmation of U.S. Circuit Court of Appeals Judge John G. Roberts, Jr. as Chief Justice of United States Supreme Court. It turned out to be Justice Roberts whose actions on that court saved President Obama’s signature healthcare legislation.

There was never any good reason for anyone to vote against the Roberts nomination.  He is the model of an American justice.  Any doubt about Roberts’ credentials as a judicial star straight from central casting are being erased now in all of the glowing profiles of Roberts, from a Time magazine cover story, to the newly congratulatory salutations from those legal academics (Jeffrey Rosen, Jeffrey Toobin, Noah Feldman) who had for weeks been preparing the battlefield for an attack on the five Republican justices in the event they invalidated the Affordable Care Act.

There were 22 belligerents in the Senate who voted against the Chief Justice. The lineup of “Nays” against the 2005 Roberts confirmation included the usual suspects from the left; Senators Biden, Boxer, Corzine, Durbin, Feinstein, Harkin, Kennedy, Kerry, Reid, Schumer… and of course, Illinois Senator Barack Obama.

Michigan Senator Debbie Stabenow, then preparing for her first re-election bid and catering to her friends among the institutional left, also cast her vote against the nomination of John Roberts.  With that vote, she parted ways with her Senate colleague from Michigan Carl Levin, who voted in favor of confirming Roberts.  Stabenow is now again running for election, for a third term to the Senate, having effectively been one of those critical deciding votes in favor of the health care bill but also having voted against the confirmation of the law’s ironic savior in court, Chief Justice Roberts.

But it doesn’t get much more ironic than what Senator Barack Obama said in 2005, as he stood in the Senate chamber and opposed the nomination of John Roberts to the position of Chief Justice of the United States Supreme Court:

“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. I hope that this reticence on my part proves unjustified and that Judge Roberts will show himself to not only be an outstanding legal thinker but also someone who upholds the Court's historic role as a check on the majoritarian impulses of the executive branch and the legislative branch.”

Congratulations, Mr. President.  You were wrong.  Chief Justice Roberts has indeed shown himself to be an outstanding legal thinker, as well as someone who cares deeply about the court’s historic role.   And I suspect, Mr. President, that you are pleased that Chief Justice Roberts didn’t try to do more, to “check the majoritarian impulses of the executive branch and the legislative branch.”

Charles Brown is an attorney from Livonia. His views are his own and do not necessarily reflect those of Michigan Radio, its management, or its license holder, the University of Michigan.