July 20, 2005

The Roberts Media Whirlwind

OK, so this is my favorite line that I've read on the nomination of John Roberts this morning:

``I don't see ideological underpinnings,'' said A.E. Dick Howard, a law professor at the University of Virginia in Charlottesville. ``Conservative, yes, but ideology, no,''

What, are only liberals ideological? I presume what the esteemed professor Howard means (or one of the things he means) is that he's conservative, but he doesn't breathe fire like Janice Rogers Brown who's at least straightforward about the ultimate results of her reasoning.

All in all my initial impression is that Roberts will be a solid conservative, but will be better mannered than Scalia, and he seems likely to follow in the Rehnquist mold of a justice who's very concerned about the power and role of the Court. He also seems to have the political skills and demeanor to be far more successful than Scalia in creating right-wing majorities, though he also has a Breyer-ian pragmatic streak. Given his lack of a lengthy paper trail I presume he'll make it through the confirmation process fairly easily, and the result will be that the Court will shift further to the right (and of course in some areas like business law and criminal law it's already further to the right than is often discussed). Go check out The Supreme Court Nomination Blog if you want to read more on the opinions he's written and the media reaction to his nomination. This post by Lyle Denniston points out how a Justice Roberts on the Court will likely move to the fulcrum of power to a "Gang of 3" (Roberts, Kennedy and Breyer) - though personally I'd have added Rehnquist to that list since while hard-right he's a rather different sort of conservative than Scalia and Thomas.

All in all, conservatives have much to be happy about, and as for the left ... well, at least Roberts isn't a partisan hack or Garza or Jones. He's one of the most respectable choices Bush could have made, though I still fear for reproductive rights (among others) in the wake of this pick.

UPDATE: Article III Groupie reminds us that Roberts is the #5 Hottie of the federal judiciary (I dearly wish President Bush would have picked the #1 Hottie instead). Actually she has a lot of information on Roberts at Underneath Their Robes.

UPDATE II: Randy Barnett has some words on this nomination that are worth reading.

Posted by armand at July 20, 2005 11:11 AM | TrackBack | Posted to Law and the Courts


So, do the Democrats shoot all of their bullets and make a serious attempt do derail him? It would expend a great deal of political capital, and might not work, but is it worth the attempt either on philophical grounds (he's awful; we should morally oppose Roberts) or political grounds (he's weak, we can make him seem out of the mainstream, and this will hurt Bush even more)?

Just curious.

Posted by: baltar at July 20, 2005 11:47 AM | PERMALINK

Well, I would expect groups like NOW and NARAL to lobby against him. I mean his writings as a government attorney were clearly anti-Roe (though whether or not those writings are indicative of his own views as well as those of his client is not clear). But I'm not sure that there's anything on the record that could lead him to be defeated, and my guess is that he'll come across extremely well in the confirmation hearings, so ... well, Boxer or someone might try to filibuster him, but my guess is that that will fail, that you'll have enough Dems break with the party on that (at least one Nelson, Pryor, Lincoln, Landrieu and actually Byrd would all strike me as unlikely to back a filibuster, among others). So ... I guess what I expect to see is an interesting confirmation hearing with some people fighting hard against him on the floor after he gets out of the committee (Schumer, Boxer and Kennedy among them). But I think he will come to a vote, and Roberts will be approved. It seems entirely appropriate for some to oppose this nomination - but I don't see the Democratic leadership actively opposing it in a "shut down the Senate" kind of way.

Posted by: Armand at July 20, 2005 11:56 AM | PERMALINK

i hope the dems realize that their best bet to derail the next nominee, if there is one, who is likely to be more of a go-for-broke idealogue, is to preserve their credibility w/r/t the filibuster agreement -- i.e., show in this instance that while they don't love roberts, they don't find any "extraordinary" basis for a filibuster. that way, if specter rolls over on a wingnut (which is not a given, assuming he's still calling the shots when the time comes), the dems will appear to be far more within the bounds of reason and their gentleman's agreement when they seek to block the wingnut by hook or crook.

i think roberts is smart. let's hope the dems are too; if they screw this up, they're going to lose most of the cachet they've built up in the past year in foiling social security reform, fighting the bolton nom., and so on.

Posted by: joshua at July 20, 2005 12:19 PM | PERMALINK

This is a smart nomination for Bush. If he had picked a real demon, dems descending in wrath would have been natural. Now it will make them look bad, as this fellow is not of the horns and fangs variety. I think we should start getting used to "Justice Roberts," whether we like it or not.

Posted by: binky at July 20, 2005 12:22 PM | PERMALINK

Binky - do you mean "obvious" demon? :)

Joshua - presuming he doesn't say something in the hearings that opens him up to a clear attack on privacy or liberty rights grounds (which I doubt happens), perhaps the best thing for the Democrats to do is to have someone like Boxer announce she wants to filibuster, but then have a cloture vote - and get debated ended with considerable Democratic support (say 10-20 Democratic votes). That will preserve the filibuster, show that it's important, and that it can be used respectably and responsibly. It will also allow Democrats who have sincere and grave concerns to point those out have them given more attention.

Posted by: Armand at July 20, 2005 12:32 PM | PERMALINK

Yes. You know, the ones with spinning heads and what not. (recalls Bill Hicks doing the sounds effects for "SUCKING SATAN'S COCK!!!")

Posted by: binky at July 20, 2005 01:37 PM | PERMALINK

I think both Armand and Joshua are slightly missing the point about a filibuster. As I understand the fight, the way it works is that the Dems announce (and do) a filibuster. Some Rep. stands up, addresses the chair (always a R), and asks for a ruling that says the filibusters are not constitutional/within the rules. The Chair (Frist/Cheney) rules this is so. End of filibuster.

The Dems, at that point, have a couple of options. They can grind the Senate to a halt (through procedural motions, committee delays, etc.) in protest to the end of the judicial filibuster (again, it's my understanding that the Reps are claiming that the filibuster isn't lawful/constitutional for judicial appointments, not that the filibuster isn't within the rules for other activities), or they can go to court and sue to get the R's interpretation of the rules overturned by a judge who says the R's interpretation isn't constitutional. Either options precipitates a huge fight, one that may involve some form of a constitutional crisis.

In any event, whatever the Ds were filibustering would have gone through (that's what the R's ruling from the chair would allow), and hence they wouldn't have actually stopped anything. If they win the fight (get the R's to allow judicial filibusters) then they could stop the next one, but not whomever they were filibustering at the time.

Posted by: baltar at July 20, 2005 01:38 PM | PERMALINK

baltar, yes and no -- i think the whole reason wanted to kill the filibuster on CoA nominees was to avoid the transparency of ending it directly in connection with a supreme court nominee. i'm not saying they're not arrogant and short-sighted enough to do it. i'm just saying that i don't see it as a given, because to change the rules in the middle of the game with the stakes so high is bound to incur a backlash, and even the GOP knows to pick its battles.

Posted by: joshua at July 20, 2005 04:12 PM | PERMALINK

I'll be honest, I'm a little confused. How do the Democrats in the Senate mount a serious opposition to Roberts without admitting that they either didn't do their homework before(ineptitude), or that they didn't think it was worth their time to oppose him (lack of will) when he was nominated for the DC Appeals Court. Only three of them have their bases covered to argue convincingly against him this time, and let's be honest, Ted was on C-Span this morning talking about how O'Connor was a uniter on the Court in many 5-4 cases, so obviously only two Senators who may be taken seriously. This is what I was talking about in another post with extremists being on both sides of the aisle, the prevailing either you're with us or you're against us attitude in the Senate, that it's all black and white and how so many senators fall in behind the distinguished kooks on their side of the aisle.

Posted by: Morris at July 20, 2005 09:42 PM | PERMALINK

there is one legitimate way to distinguish: on the circuit court, idealogues are checked by two other panel-members in any given case, as many as a dozen others in special (en banc) cases, and by the supreme court in the final instance.

this is why i was unimpressed by people's reliance on edith clement's comments on abortion during her confirmation hearing. she acknowledged that it was the well-settled law of the land, and indicated that she understood it was not the role of a judge on the court of appeals to go tampering with clear supreme court precedent. that said nothing, and remains effectively unilluminating, with regard to her thoughts and how she might rule were she, herself, on the supreme court.

i agree that the misconduct threshold should be the same for all article III courts, but if only for expedience's sake, and the absence of redundancy at the highest level, i firmly believe the test is very different for a supreme court nominee than it is for a circuit court nominee. history reflects as much.

that said, you've seen my $0.02 -- i don't think the democrats are foolish enough to oppose this one. the next one is the big game; this is just warm-ups.

Posted by: joshua at July 20, 2005 10:07 PM | PERMALINK
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