I would have blogged about the brouhaha around this article last night (having listened to a radio rant on my way home from work), but I was enjoying the company of friends at this production of Chekhov’s The Cherry Orchard (excellent, by the way).
First of all, here are today’s stories on the subject. I have two thoughts. In the first place, Roberts’s participation (limited as it was) indicates something of his generosity, capacious enough to encompass those with whom he might have an ideological disagreement, as well as his collegiality. Both of these strike me as indicators of the requisite "judicial temperament." Second, it seems to me that one could argue that the adversarial process works best when both sides are making their strongest arguments, and compelled to respond to the other side’s strongest arguments. Roberts could be said to have contributed (generously) to the most effective possible functioning of the adversarial process, which could matter more than (or at least as much as) a particular outcome. If you want the result of a case to have a chance of standing the test of time, you hope for and work toward effective advocacy on both sides. As an attorney, that’s all you can do.
As a President, however, you also do what you can to assure that the judges deciding the cases can distinguish good from bad arguments and do not permit extraneous ideological considerations to sway their judgment. I still think President Bush has done a good job here.