Would John Roberts Have Become Chief Justice If He Was Confirmed To The D.C. Circuit in 1992?

Today Chief Justice Roberts spoke at the Baker Institute at Rice University in Houston. No, I did not attend. In candor, members of the Baker Institute Roundtable (a $500 fee) had early access to public tickets, and once those were gone, the event was at capacity. That was too rich for me. I considered protesting outside the building with a “#RESIGN” sign, but decided against it.

The conversation was moderated by Judge Lee Rosenthal of the Southern District of Texas. She did an expert job moderating the conversation. Most of the press focused on Roberts’s comments concerning attacks on judges:

ROSENTHAL: In your 2024, year end report on the judiciary, you wrote that criticism comes with the territory for judges and justices and that it can be healthy. You’ve talked about the criticisms that your predecessors encountered. How do you handle criticism of your court or your opinions today?

ROBERTS: Well, it does. It does come with the territory. Often when any of us issue an opinion, there’s often a dissent, usually not but I mean, people, their most opinions are more opinions than anything else, are unanimous, and that’s pretty to get used to the criticism right away, and it can very much be healthy. We don’t believe that we’re, you know, flawless in any way, and it’s important that our decisions are subjected to scrutiny, and they are. The problem sometimes is that the criticism can move from a focus on legal analysis to personalities. And you see from all over, I mean, not just any one political perspective on it, that it’s more directed in a personal way, and that, frankly, can be actually quite dangerous. Judges around the country work very hard to get it right, and if they don’t, their opinions are subject to criticism, but
personally directed hostility is is dangerous, and it’s got to stop.

ROSENTHAL: It’s very much part of our lives these days. And on behalf of trial judges
everywhere, I want to personally thank you, because while we know that you may not always agree with us, we always know that you have our backs, and that means a great deal. So thank you, and I hope it continues. I know it will.

I found one of the most fascinating exchanges to concern what might be seen as the Roberts’s biggest disappointments. In 1992, President George H.W. Bush nominated Roberts to the D.C. Circuit at the age of 37. Of course, Senator Joe Biden blocked the nomination, and Roberts never even received a vote. Elena Kagan likewise was nominated for the D.C. Circuit in 1999. She too never received a vote.

I’ve long suspected that if Roberts and Kagan had been confirmed, they never would have made it to the Supreme Court. One of the downsides of being a judge who aspires to higher office is that you have to actually decide cases. And those cases will invariably upset some people. When Roberts was nominated for the Supreme Court in 2005, he had only been an appellate judge for about two years, with very few cases to show. Before there was the frozen trucker, there was the greasy snacker. Roberts’s most controversial decision concerned a girl who was arrested for eating french fries on the Metro. Of course, Roberts also decided what would become Hamdan v. Rumsfeld on July 15, 2005–at the same time he was interviewing before the Supreme Court. Talk about a well-timed audition!

Judge Rosenthal asked Roberts to reflect on his experience of not getting the D.C. Circuit at the age of 37:

Well I was disappointed. I wasn’t naïve about the prospect that things might not work out. It was a disappointment. You look ahead and plan what your life will be like. I think it was a great honor. It was a great calling to be a federal judge. In retrospect, 100%, it was one of the best things that ever happened to me. That is a young age to take on a life-tenure job. You give up a lot of opportunity for other experiences. I’m pretty sure if I had done that, I wouldn’t have ended up where I am now. You do develop something of a track record and it is not always something that appeals to people. And I went on and was able to do private practice but also another government opportunity. It was a disappointment but turned out alright.

I’ve listened to many speeches the Chief has given over the years, but I don’t recall him ever being so honest and vulnerable. It was truly refreshing. I firmly believe that people only learn from defeats. Someone who has never faced adversity likely has not been taking enough risks.

On the substance, Roberts is 100% correct. Had Roberts spent a decade on the D.C. Circuit during the 1990s, his record would have looked very different. He likely would have infuriated Democratic Senators by ruling against the Clinton Administration. And Roberts likely would have disappointed Republican Senators by not being conservative enough (because he isn’t that conservative). To play out the counterfactual, it’s possible that Roberts still would have made the short list. Indeed, he likely would have still been a finalist alongside Judges Luttig and Wilkinson. Maybe Roberts still would have been picked. Who knows? But Roberts doesn’t think so.

Likewise, had Elena Kagan spent much of the Bush Administration ruling in favor of Guantanamo Bay detainees, she would never have been considered. Senator Lindsey Graham would have never voted for her. And what would have happened to Harvard Law School? It might have gone the way of Yale Law School! By way of comparison, Justice Kavanaugh spent a decade on the D.C. Circuit and made lots of enemies. He was only confirmed by a bare majority. Had the filibuster still been in place, Kavanaugh would have never been considered.

Kudos to Judge Rosenthal for getting the Chief Justice to open up. This was a very well done interview. I’ll write up a few other points in another post.