One cannot help but feel a little sympathy at the frantic floundering of Liberals in the wake of the nomination of Judge John Roberts, Jr. to the Supreme Court. Liberals have the upsetting and accurate notion that Roberts is an attractive, smart Conservative with too little of a paper trail to criticize. The Bush Administration has carefully prepared the judicial nomination battle field by cutting off potential Liberal avenues of attack.
Roberts has the appearance and deportment of a choir boy, as opposed to the professorial pedant arrogance of Judge Robert Bork. Bork’s demeanor appealed to like-minded Conservatives, but scared off others. Moreover, when Bork was “borked” in 1987, the Reagan Administration was surprised and unprepared for the mean-spirited and personal assault on Bork from the Left. This episode initiated the current trend toward highly-polarized federal court confirmation confrontations. In the Roberts case, the Bush Administration was able to maintain secrecy until the formal announcement of the nomination, allowing the Administration to frame the nominee before opposition groups could effectively undermine Roberts.
In addition, President George Bush at least went through the motions of consulting with members of the Senate on both sides of the aisle. Lack of consultation can not be effectively used as an excuse to delay Roberts’ confirmation or even a vote on his confirmation.
Strategic planning and frustration have largely reduced Liberals to rambling incoherence. In order to excavate potentially incriminating information, some Liberals now argue that attorney-client privilege should be violated and written legal advice Roberts wrote on behalf of the government when in the Solicitor General’s Office ought to be released. Surely they can not really believe their own arguments in this regard.
Liberals are the ones who normally claim that the Constitution is a living and breathing document that should change with the times, unmoored by the text or the original understanding of the Founders. Yet now they are arguing it is extreme for the Courts to re-examine “settled law” (at least the Roe v. Wade abortion decision). In other words, Liberal victories are to be forever enshrined, but the Constitution should remain open to future Liberal extension. It is difficult to believe that there are some who maintain that same-sex marriage is a Constitutional right and at the same time claim Courts should not question settled law. Liberals find themselves in an intellectual pretzel, twisted and contorted by both their inability to win political victories and their undemocratic reliance on the courts to impose their agenda.
Unless there is some character issue lurking that will disqualify Roberts, the nominee will be confirmed. Democrats and Liberals (and Republicans and Conservatives for that matter) should exercise due diligence in vetting Roberts before the Senate Judiciary Committee and the full Senate. However, Liberals should avoid rancor and mean-spiritedness. If a nominee as squeaky clean and so obviously intellectually and temperamentally qualified for the Court as Roberts is attacked, then the Liberal opposition will lose what little credibility they have with the public. Such an erosion of credibility would make it difficult in the future for Liberals to oppose a more firebrand Conservative that Bush might nominate in the future.
Some Conservatives too need to take a deep breath and show a little faith that Bush’s nominee will not prove to be another Judge David Souter. David Souter was nominated by the first President George Bush and has moved to the Left end of the US Supreme Court. Firebrand polemicist Ann Coulter argues that Bush’s nominee is “Souter in Roberts’ Clothing.” Like-minded Conservatives would have preferred an outspoken Conservative Constitutionalist with a clear judicial record. This would have provided assurance that a Republican judicial nominee would not “grow” in the position and eventually and inevitably succumb to the temptation of the law and try to legislate from the Court.
In the Weekly Standard, Fred Barnes reports that the current Bush Administration too was concerned, if not pre-occupied, about avoiding another Souter. When Souter was nominated he was not carefully vetted or questioned by the administration of the first President Bush. In lieu of a careful examination, the first Bush relied on recommendations of Chief of Staff John Sununu and Republican Senator Warren Rudman. Barnes assures us that not only was Roberts questioned extensively on his judicial philosophy, but also that there were backdoor assurances by Conservative judicial saint and Associate Supreme Court Justice Antonin Scalia that Roberts would be a welcome addition to the Court.
Perhaps as important as Roberts’ judicial philosophy is his style. While the blunt and colorful decisions of Scalia and Justice Clarence Thomas are enjoyable to read, perhaps they tend to alienate judges who otherwise might be more sympathetic. Roberts’ quieter style and legal expertise might be able to sway more justices toward Conservative positions than Scalia and Thomas did. Given the narrow margin of some decisions, that talent might prove crucial.
Liberals should accept the unavoidable with uncharacteristic grace and Conservative should support Roberts without, an all too characteristic, excessive fear of mistakes past.