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?).