Tuesday, July 19, 2005

Could Be Worse

So says Legal Fiction, and so say I.

The big man is John Roberts, currently on the DC Circuit Court of Appeals. After all that talk about replacing O'Connor with another woman, or a minority, Bush throws a curveball and nominates a white male. Took my ankles out on that one! (Actually, I'm serious. Bush has been admirable in appointing minorities to high positions--and he loves to make splashes in showing how diverse he is. I figured this was an opportunity he couldn't pass up).

So...Roberts, Roberts. Well, I'm going to respectfully disagree with my noble TMV co-blogger Michael in calling Roberts a "right-wing radical" with a "scary" record. Most of Roberts' paper trail is on stuff where he was representing the Bush (I) administration--in other words, where he had to toe the precise line of the administration. Hence, all the hay about how he asked for Roe to be overturned (Rust v. Sullivan), or other arguments he's made as an attorney, don't carry too much weight with me.

What little I know of Judge Roberts comes from personal testimonials (though if you're looking for a more meaty background, here is a good place to start, thanks to The VC). When presented with a four person "short list" of nominees, I ranked Roberts second, behind McConnell but ahead of Luttig and Wilkinson. Much of that has to do with my conversations with Georgetown Law Professor Richard Lazarus, Roberts' law school classmate and certainly no Republican. Orin Kerr, another man I respect highly, also gave Roberts the thumbs up. Like Joseph Weisenthal, "if it's good enough for Orin Kerr and Juan non-Volokh...then it's good enough for me!" Ultimately, he strikes me as a conservative non-ideologue. I can accept that mix.

Conservatives are happy with the choice. Powerline says "pop the champagne corks," while Southern Appeal is just happy to see that O'Connor's seat won't become reserved for women (they also treat us to this butchering of the Critical Legal movement, courtesy of Senator Jeff Sessions (R-AL)). Like Pejman, I too would have preferred Roberts for Chief, not just because I think he'd be good at it (though I think he would), but also because I think he fits more closely with Rehnquist's judicial philosophy than O'Connor's (remember, he clerked for him). Keep in mind, I've had this Supreme Court since I was 8. I kind of like the lineup--I'd rather not see any drastic ideological shift.

But to me, at least, the most interesting reaction was over at The Daily Kos. Expecting some reflexive Bush-bashing? Think again:
So who is this guy Roberts? He has only two years of judicial experience, and his legal advocacy can be dismissed as doing the bidding of his bosses.

Fair enough. I'm willing to hear the guy out. We're not going to get a Ginsburg, but I'd be happy with an O'Connor-style moderate conservative. For all we know (and for all the religious-right knows), Roberts might be that sort of guy.

But he has to be honest and forthcoming, unlike his previous confirmation hearing. The Senate must take its time deliberating over the nomination. And this is something that all sides should want, not just ours. For all the right wing knows, this guy may be the next Souter who simply pretended to be virulently anti-privacy.

As Roberts answers all questions posed, we can then decide whether it's worth opposing or not. And as that process plays out, we can make sure that Rove isn't forgotten in all the Supreme Court hoopla.

All the conservatives are convinced that the left would just oppose any name Bush threw out. The statements of Kos (as good a barometer as any for the left end of the Democratic party) belie that prediction (yes, I suppose they could just want to appear like they gave Roberts a "reasonable" hearing, to justify later opposition. But since when has Kos cared about being reasonable?).

10 comments:

Adam said...

You said:

"Conservatives are happy with the choice ... Southern Appeal is just happy to see that O'Connor's seat won't become reserved for women."

Just so that there's no risk that your readers will misunderstand my point (surely not your intent), I said:

While I of course would have enjoyed a Janice Rogers Brown nomination (as I made quite clear blow), the nomination of Judge Roberts eliminates any threat that the O'Connor Seat would become the official "Woman Seat."

The Supreme Court for too long featured its own demographic ghettos: the Catholic Seat and the Jewish Seat. (Not to mention the Massachusetts Seat.)

I'd be pleased to see more diversity -- in the fullest sense of the term* -- on the Supreme Court. But assigned seating belongs in classrooms, not on the Court. Good job, President Bush.


More women justices? Yes, please! Shortly before the nomination I wrote a lengthy post expressing my hope that Janice Rogers Brown would get the seat. But no one wins when a single seat become identified with a demographic group, and the Roberts nomination does have the benefit of removing the threat of this seat becoming "The Woman's Seat".

Surely you agree, correct?

Anonymous said...

Yeah I'm confused. Everyone on the right (like powerline) seem to be happy they got a hardcore conservative. And everyone on the left (like Kos) seem relieved they didn't get a hardcore conservative.

What gives?

L.Austin Bernard said...

but... for KOS a filibuster is reasonable opposition

LagunaDave said...


Yeah I'm confused. Everyone on the right (like powerline) seem to be happy they got a hardcore conservative. And everyone on the left (like Kos) seem relieved they didn't get a hardcore conservative.

What gives?


Another Jedi mind-trick brought to you by Karl ("Obi-Wan") Rove...

(And a great choice by Dubya!)

Michael said...

This was an opportunity he couldn't pass up-- to poke a hole in the affirmative action mindset that sees a female seat on the SC as being similar to France's permanent seat on the UN Security Council.

And I would bet it comes from the confidence that another spot will open shortly and be filled by a woman then.

Anonymous said...

Actually, this idea that SCOTUS justices have to be chosen on the basis of superficialities, such as skin color, accent, nationality, gender, etc. gives me the willies.

In my mind, it would be mucho better to have honest justici who have, at the very least, read the document that they are supposed to be defending.

blueeyes said...

"Yeah I'm confused. Everyone on the right (like powerline) seem to be happy they got a hardcore conservative. And everyone on the left (like Kos) seem relieved they didn't get a hardcore conservative.

What gives?",


Conservatives are just happy that they have a nominee that might get confirmed sometime before the 2008 election cycle without invoking the nuclear option. His only property rights decision is very iffy; that the just compensation in the 5th should be "informed by changing norms of justice." He has no major decisions on gun rights, and he acknowledges that Roe v. Wade is official precedent and that he should follow that. He's said to be fairly conservative, but manages to befriend some highly left-wing individuals, and it's those lefties that are calling him conservative, so we don't really know what to expect.
Doesn't sound like an American Taliban's hearthrob, I'm afraid.

That doesn't get rid of the nasty feeling that by the end of the week Kos will be calling Roberts a paid partisan hack who wants to strip away rights from women, minorities, and monocellular, near-extinct creatures in a swamp somewhere. But that's just my little paranoia.

vaal said...

You were awfully kind to Kos here. I recommend that folks read a non-cherry-picked sampling of posts over there. Nothing will be "belied."

flaime said...

I was hoping, beyond hope, that Bush might nominate someone who remembered that the PEOPLE have rights enumerated under the constitution, not corporations and government. He failed.

Mrs. Davis said...

You missed this qualification:

As Roberts answers all questions posed, we can then decide whether it's worth opposing or not.

He will not answer all of Schumers dumbass questions and that "failure to be forthcoming with the American People" will be the basis for irrational opposition and filibustering by the detached from reality wing of the donks.