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September 18, 2005

WaPo backs Roberts; NYT doesn't

The Washington Post's editorial board has come out in favor of John Roberts' confirmation, and the New York Times has come out against.  Some would argue that this is all just as relevant as Michael Bloomberg's view.  In any event, the key passage of the Post's editorial is this:

Judge Roberts represents the best nominee liberals can reasonably expect from a conservative president who promised to appoint judges who shared his philosophy. Before his nomination, we suggested several criteria that Mr. Bush should adopt to garner broad bipartisan support: professional qualifications of the highest caliber, a modest conception of the judicial function, a strong belief in the stability of precedent, adherence to judicial philosophy, even where the results are not politically comfortable, and an appreciation that fidelity to the text of the Constitution need not mean cramped interpretations of language that was written for a changing society. Judge Roberts possesses the personal qualities we hoped for and testified impressively as to his belief in the judicial values. While he almost certainly won't surprise America with generally liberal rulings, he appears almost as unlikely to willfully use the law to advance his conservative politics.

Since Roberts' confirmation is all but certain, we can only hope that the Post is right.  And I do think there's some value in the notion that, as the Post says, if the left continues to paint Roberts as a disaster waiting to happen and to push against his confirmation, it's difficult to imagine anyone Bush might nominate that the left could support, which simply means that the left isn't happy with how the last election came out and wishes that Kerry had won.  Well, he didn't.  In light of that, Democrats have to be realistic about (a) which seats really matter (O'Connor's replacement much more than Rehnquist's), and (b) which nominees are worth going to the mat over (still not clear to me that Roberts meets that description - the Post might be right).

The Times, in contrast, says that they don't know enough about how Roberts would rule on key issues, and therefore that Senators should reject his nomination.  I've expressed similar concerns before, but in light of the entire four days of testimony, I find it hard to say that Roberts was so unforthcoming about his philosophy of judging and his general approach to important issues that a filibuster is warranted.  If the Times is looking for a nominee to say "no, I would never vote to overrule Roe," they are living in a fantasy world - no Bush nominee is ever going to say that, even if it's true.  Roberts actually came as close as a Bush nominee could be expected to come by explaining at some length the importance of longstanding and recently-reaffirmed precedents like Roe.  At bottom, I find it difficult to conclude that Roberts was so much less forthcoming than other recent Republican and Democratic nominees who were confirmed easily, and therefore I can't agree with the Times.

UPDATE: Today's Joan Vennochi column expresses views similar to the ones I've set out here and in other posts.

Posted by David at 12:17 AM in Law and Lawyers | Permalink


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Exactly. Liberal groups need to get over it. Roe vs Wade is probably gone. I don't like that, but I do accept it. Bush did win the election. And really, what are we going to do, filibuster EVERY Bush nominee for the next THREE years? Roberts is not my choice, but he does say he respects the right to privacy, and he is a very intelligent person with enough experience, IMO, to warrant having him on the Supreme Court.

I, for one, am jumping for joy that we aren't discussing how to oppose Chief Justice nominee Clarence Thomas right now...

Let's have some perspective here...

Posted by: Ken | Sep 18, 2005 11:52:26 AM

When I heard that Roberts was going to be renominated as Rehnquist's replacement, my first thought was, oh, okay, he's probably a bit of an improvement over Rehnquist.

After following the hearings, though, my main thought now is, this is utterly ridiculous. I was shocked on the few occasions when he actually seemed to answer a question. Regardless of whether he ought to be confirmed, for the Senate to confirm him after this hearing would make a travesty of checks and balances and the Senate's role. They should demand the materials Bush is hiding, and demand that he come back for another set of hearings and actually answer the questions (yes, even ones that relate to his views on things that might come up in cases he'll decide - that's the whole point). And then confirm him.

Have you seen this ad from PFAW? It summarizes my feelings exactly.

The choice for Democrats, BTW, should be between filibuster and voting no. Voting "no" without a filibuster is effectively a yes, and they know it, but actually voting "yes" would be really dumb. Even if they choose to let him be confirmed, they should still vote "no" to make it clear to the country that there is a contrast between the two parties, and Roberts got confirmed because the Republicans have a majority, so if you want different judges, give the Democrats a majority. And if the Democrats deliver 44 "no" votes, they would be effectively signaling to Bush that they have party unity and can filibuster his next nominee, so he shouldn't get too cocky about getting his way with this one.

But as I said above, I strongly feel that the entire Senate should hold this nomination until they get some answers. The confirmation hearings were a farce. Of course, this is the same Senate that willingly gave up its war powers authority, so why should they care about their responsibility on judicial nominations? feh

Posted by: Cos | Sep 18, 2005 1:26:26 PM

Roberts has been very slippery, and that coupled with his not excusing himself from ruling as a judge on a Bush administration case while he knew he was being considered for nomination for the SC should automatically make him a filibuster candidate.

However, my husband is convinced Rove picked a nominee who wouldn't overturn Roe. That would lose them that issue for future elections - making it hard to turn out their base. That's the whole point of wedge issues - if the righties get what they want, they stop being motivated. I'm still skeptical of that, because I think Bush is somewhat of a true believer, but it could be that Roe is safe.

Of course, being strung along all this time only to have their guys fail them might ALSO turn off the religious right vote as well, and I suspect the backlash from a Roe save by Roberts could actually be worse for the Republicans in the long run.

Posted by: Lynne | Sep 18, 2005 2:48:41 PM

Yeah, I was pretty concerned about the fact that he thought that international treaties between nations don't include an implicit private cause of action. That sounds sort of Bork-esque to me.

I don't know whether the Democrats need to filibuster, but I think that it's important for them to vote no. David, what's your position on that? Are you okay with a "yes" vote?

Posted by: Abby | Sep 18, 2005 3:22:44 PM

Presidents have gotten, even from Republicans, and deserve, a *large* amount of discretion in choosing judicial nominees. There are exceptions. Janice Brown would warrant a filibuster. Roberts doesn't even warrant a "no" vote.

The President gets to pick a nominee, and in the absence of extrodinary circumstances he should be confirmed. Roe vs Wade is not an extraordinary circumstance and is not even grounds for a no vote. It is just a minor ideological difference. Bush is not going to nominate Noam Chomsky for Supreme Court Justice. I think Roberts would probably be a good justice even though I don't agree with him on every issue. He is a very intelligent person with a solid background.

Yeah, maybe he was "slippery" in his hearings, name one recent Democratic nominee for the Supreme Court that wasn't. Even the Republicans voted for Ginsburg and Breyer. Roberts deserves the same treatment.

Posted by: Ken | Sep 18, 2005 3:44:19 PM

^With the above being said, I do think that it would be better politically for the Democrats to vote against Roberts. This is pretty persuasive. I would have no problem with a Dem voting yes, but simultaneously think it would be better for them to vote no since it doesn't affect anything substantively...

Posted by: Ken | Sep 18, 2005 4:13:47 PM

Here is my question for Cos, Lynne, and the others who back either a filibuster or a "no" vote, or both: do you think that Republicans betrayed their constituencies when they voted in droves for Ginsburg and Breyer? It was perfectly obvious that neither of those Justices would vote the way the Republican "base" would have liked, yet they voted for them anyway.

I don't necessarily agree with Ken's formulation regarding the degree of discretion that Presidents should have on judicial nominations. That said, though, I have to question whether Roberts has been that much less forthcoming that anyone else in recent years, as I said in the post. So if we're planning to raise the bar as much as y'all are suggesting, we must be aware that it will come back to bite us hard on the ass when we elect a Democratic president in 2008.

Posted by: David | Sep 18, 2005 4:52:41 PM


What I would say is that the Republicans have radically changed the rules. They blocked a ton of Clinton's judicial nominees.

They behave a lot more like a parliamentary party, and I think that the Democrats need to say, "this is not what we support. We stand for something different."

Posted by: Abby | Sep 18, 2005 8:23:42 PM

the Republicans have radically changed the rules
I certainly don't disagree with that. Their behavior regarding lower courts during the Clinton years was shameful, and their hypocrisy on the filibuster issue now that they're in control has been nothing short of horrifying.

The Supreme Court, however, has to be in a different category and have its own set of rules, if only because there are only 9 Justices (and there are lots of other reasons). With respect to the Supreme Court, Clinton's nominees were treated fairly and were confirmed easily. I'm not saying Bush nominees get a pass, but I am suggesting that similar rules ought to apply.

Posted by: David | Sep 18, 2005 9:59:47 PM

Joan Vennochi rules. columnist the city has. Very fair, open monded, understands how things work, and most of all get's it.

Posted by: the troll | Sep 19, 2005 8:29:30 AM

You've cried 'Wolf!' once to often with this one. I had a letter from Mass NARAL asking for money BEFORE THE NOMINEEE WAS ANNOUNCED, explaining that no matter WHO Bush nominated, they would need money to fight them. Do you have a clue what this does to your credibility? The public no longer respects you or trusts your judgement, as Roberts is articulate, qualified and courteous. Schumer sounded like a scorned prom date for most of the questioning.

David had it right - this WILL bite you if there is a Dem in 2008, as the courtesy of the Senate has been poisoned by Reid's declaration. There will never be another uncontested Ginsburg-like hearing now.

Bush is now free to nominate Robert Bork for the O'Connor seat with impunity. You've used up all your adjectives and authority opposing Roberts.

Posted by: Peter Porcupine | Sep 20, 2005 8:16:08 PM

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