THE WANDERER, JULY 28, 2005
JOSEPH SOBRAN'S
WASHINGTON WATCH
Bush's Pick
At first sight, John Roberts looks like the finest
Supreme Court nominee anyone could reasonably hope for
from President Bush, whose praise of Roberts's
distinction, intelligence, integrity, and personal
decency was echoed by many who know his work and have
dealt with him.
It's some measure of Roberts's legal prowess that he
himself has argued some 39 cases before the Court and won
25 of them -- presumably against some of the best legal
talent in the United States. If the word "qualified"
means anything, Roberts richly merits it.
Politically, Roberts is an excellent choice for
Bush. He should enjoy the support of Republicans in the
Senate without disquieting Bush's conservative and
pro-life base (as Alberto Gonzales would have done); he
should also reassure "moderates," and the Democrats will
find it awkward to obstruct his way.
The nomination surprised everyone. Nobody had
foreseen it, and the news leaked barely an hour before
Bush announced it. Sen. Charles Schumer of New York,
always wanting to be helpful, complained that Bush hadn't
given the Democrats a chance to suggest nominees who
might be easily confirmed; Bush must have laughed at this
solicitude. In reality, he hadn't given the Democrats
time to prepare an attack on his choice. His timing and
dramatic sense were superb.
In his announcement, Bush stressed that he had
sought a judge who would "strictly apply the Constitution
and laws -- not legislate from the bench." The Democrats
have been praising Sandra Day O'Connor effusively since
her retirement, implying that her replacement should be
another "swing vote," but Bush had no intention of
appeasing them. Instead he chose a man with no obvious
vulnerabilities who could still satisfy his conservative
base. At the relatively tender age of 50, Roberts should
be good for many years on the Supreme Court; no small
consideration.
Roberts is said to be a solid conservative, a devout
Catholic, and a meticulous reasoner who, in one brief
written for the first Bush administration, argued
carefully against Roe v. Wade -- sure to be a main
grievance of his opponents in his confirmation hearings.
Yet his conservatism has never been flamboyant or
abrasive. He is a member of the Federalist Society, which
suggests unapologetic conviction on his part, but he
seems to have no enemies; on the contrary, even his
adversaries like and respect him. The liberal legal
scholar Jeffrey Rosen speaks glowingly of him.
If he is confirmed to the Court, his opinions are
likely to offer an interesting stylistic contrast to
those of Antonin Scalia and Clarence Thomas, even if he
substantially agrees with them. (We may note in passing
that Roberts would be the fourth Catholic on the current
Supreme Court.)
Instant Antagonism
But these are merely early and hopeful impressions.
Conservatives are haunted by memories of three notorious
Republican appointees, O'Connor, Anthony Kennedy, and the
even more egregious David Souter. Souter flew under
nearly everyone's radar, the only notable exception being
the ever-vigilant Howard Phillips, who warned immediately
that Souter would be pro-abortion.
If there is anything alarming in Roberts's record, or
even somewhere in his gene pool, Howie Phillips will spot
it. Professor Moriarty might throw Sherlock Holmes off
the scent now and then, but nobody fools Howie.
Meanwhile, we hope for the best.
Roberts's nomination naturally met instant antagonism
from "women's groups," as the media politely call the
advocates of feticide. But they had little to go on. He
can't be plausibly described as an "extremist" or
"far-right ideologue," and about the strongest complaint
they could manage was that his appointment was
"divisive," though it was they who appeared to be
isolated in their consternation. Unless they can link him
to Michael Jackson, they face an uphill battle.
In my reflective moments, I realize that THE NEW
YORK TIMES is probably not written for the express
purpose of driving me mad; I think of it as liberalism's
daily bulletin board. Its first editorial on the Roberts
nomination waffled amusingly: "If he is a mainstream
conservative [!] in the tradition of Justice O'Connor
[!!], he should be confirmed. But if on closer inspection
he turns out to be an extreme ideologue with an agenda of
stripping away important rights, he should not be."
How's that for stating the issue judiciously?
(You can now read Howard Phillips's thoughts on the
nomination of Judge Roberts in his essay "Roberts for
Rehnquist Is a Net Loss," a SOBRANšS Internet Exclusive,
at www.sobran.com/articles/Phillips-Roberts.shtml)
The Democrats' Problem
What about Senate Democrats? Ted Kennedy, certainly,
and Charles Schumer, probably, will oppose him; others
are more problematic.
Since the last election, the Democrats have become
self-conscious about their party's abortion mania; they
are torn between their fanatical core and their desire to
reach out to the broad middle ground of voters. Nearly
all the Democrats professed to want nothing more than a
"full and thoughtful" confirmation "process." That didn't
sound as if they would be willing to filibuster against
Roberts only because of the mere chance that he will join
the Court's anti-Roe minority.
Bush is doing everything he can to avoid a bitter
fight, calling for "dignified" confirmation hearings
conducted with "fairness and civility." If there is
rancor, he implies, it will be the Democrats' fault.
The Democrats' problem is most acutely focused in
Hillary Clinton, who wants to represent New York and run
for president at the same time. She has already been
trying to soften her pro-abortion image; but when it
comes time to vote on Roberts, even her most skillful
modulations may not be enough. She must avoid both
appearing to be a diehard feminist and alienating her
party's big financiers.
Still, unless strong momentum against Roberts builds
in the weeks ahead, a vote for confirmation should be
safe.
But again, those haunting memories. In 1987, George
Will predicted confidently that the Senate would confirm
Robert Bork; and it sounded like a reasonable prediction
at the time. Bork too had a highly distinguished record;
but what nobody could have known was that the old rules
were about to change without notice.
True, the Republicans, in that case, were totally
unprepared for the tremendous assault the Democrats were
about to mount; which may not be so this time. Bush is in
a stronger position today than Ronald Reagan was then.
All the same, Ted Kennedy and his allies are always
willing to get as ugly as it takes. Ask Clarence Thomas
how much "civility" Roberts should expect.
+ + +
Martians in New Jersey? Not again! SOBRAN'S groans,
regretfully, at Steven Spielberg's latest offering. If
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--- Joseph Sobran
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