JUDGE JOHN ROBERTS IS CURSED: with a sense of humor.
The first cullings from the document dump from Roberts's years as a special assistant to Attorney General William French Smith and as an associate counsel to President Reagan in Fred Fielding's White House shop telegraph a disturbing tendency to make his point clearly via the use of law, logic, history, and irony. From Wednesday's New York Times:
There was also the time he offered a snide analysis, in an internal White House memorandum, of a proposal from a member of the House, Elliott H. Levitas. After the Supreme Court struck down efforts by Congress to veto actions taken by the executive branch, Mr. Levitas, a Democrat from Georgia, proposed that the White House and Congress convene a "conference on power-sharing" to codify the duties of each branch of government.
Asked to comment on the congressman's proposal, Mr. Roberts mocked the idea, and him. "There already has, of course, been a 'Conference on Power Sharing,'" Mr. Roberts wrote in a memo to Mr. Fielding. "It took place in Philadelphia's Constitution Hall in 1787, and someone should tell Levitas about it and the 'report' it issued."
Levitas was a graduate of the University of Michigan Law School, and so could be expected to appreciate Judge Roberts's wry writing. It is unclear whether the New York Times reporters who judged this memo "snide" possess that insight. Almost certainly the Democratic members of the Senate's Judiciary Committee will pretend not to be amused.
The document volcano will erupt over the next few weeks, taking us deep into the years between 1981 and 1986. I am myself quite nervous that Judge Roberts sent me a memo of any sort. I was the junior briefcase carrier in Fielding's shop, and the last thing I need my Con Law students to see is a memo from a future SCOTUS justice telling me that I need to work on my citations and proofing. (Roberts was the managing editor of the Harvard Law Review--a legitimate issue among the spelling challenged for his confirmation hearings.)
There will be much to be amused by in the records of the counsel's office work, but there is also a problem. Young executive branch lawyers take note: If you aspire to the federal bench--as opposed to, say, teaching, talk radio, and blogging--mark your written words very carefully. While humor might make the point for your client, and while clarity as to the law might serve that client well whatever your own opinion, keep in mind that documents can slumber for long periods of time, only to emerge in the hands of politicians less interested in truth than in momentary partisan advantage.
As many have already remarked, Judge Roberts is among the greatest legal minds of his generation. Expect that intelligence to show through in his work as a young DOJ and White House lawyer. And expect some Democrats to hold it against him.
Hugh Hewitt is the host of a nationally syndicated radio show, and author most recently of Blog: Understanding the Information Reformation That is Changing Your World. His daily blog can be found at HughHewitt.com.