Wednesday, July 20, 2005

Gaming the Roberts nomination


I didn't have to turn on the television, or cruise the news sites, to know that president Bush had finally named a replacement for Sandra Day O'Connor. All I had to do was watch my inbox fill up with email from the usual suspects, alternately urging me to "help the President prepare for the fight against obstructionist Democrats" or to "oppose the right wing corporate lawyer and ideologue."

Which, of course, is pretty much what I predicted. It's going to be a nasty little spin fight, and it would have been almost regardless of whom Bush nominated.

So, uh, who is John Roberts? Let's sort through some of the spin.

The administration definitely had its talking points in order, and obviously had those talking points distributed to its supporters in advance. Here's what the "conservative" press had to say within hours, if not minutes, of the announcement:

A brilliant lawyer, devoted husband and father, and judge respected on both sides of the aisle .... near unparalleled experience .... a career well within the legal mainstream .... Hardly the track record of the extremist his opponents will try to make him out to be. ... confirmed by a more heavily Democratic Senate to his current seat on the D.C. Circuit by a unanimous voice vote — at a time when other nominees were stopped cold in their tracks. -- Shannen W. Coffin in National Review

In choosing among judicial conservatives, there are safe picks and risky picks. With Roberts, Bush took the safe route. Related to this, there are cautious judicial conservatives and bold judicial conservatives. The president tilted to the cautious side in naming Roberts. ... impressive credentials as a brilliant legal scholar and man of solid temperament and character. More important, he's already been tested in the Senate and passed muster. In 2003, his nomination to the U.S. Court of Appeals for the District of Columbia sailed through the Senate Judiciary Committee on a 16-3 vote. He cleared the full Senate on a voice vote. ... Social conservatives were hoping for more. No doubt they'll line up in support of Roberts when Democrats like Schumer and groups such as People for the American Way begin to attack him. ... Is Roberts likely to join a anti-Roe bloc on the court? Probably not. -- Fred Barnes in The Weekly Standard

The Republican spin is "moderate, not anti-Roe, confirmable." The Republican game is to pre-emptively paint any questioning of Roberts's fitness as "obstructionism." This is good strategy -- and the Left walked straight into the blades.

In nominating John Roberts, the president has chosen a right wing corporate lawyer and ideologue for the nation's highest court instead of a judge who would protect the rights of the American people. Working for mining companies, Roberts opposed clean air rules and worked to help coal companies strip-mine mountaintops. He worked with Ken Starr (yes, that Ken Starr), and tried to keep Congress from defending the Voting Rights Act. He wrote that Roe v. Wade should be 'overruled,' and as a lawyer argued (and won) the case that stopped some doctors from even discussing abortion. -- MoveOn

As a deputy solicitor general for George H.W. Bush, Roberts wrote a brief arguing that doctors in clinics receiving federal funds shouldn't be able to talk to their patients about abortion (the Supreme Court agreed) and in passing called for the reversal of Roe v. Wade. ... an opinion that the 50-year-old judge joined just last week in the case Hamdan v. Rumsfeld should be seriously troubling to anyone who values civil liberties. As a member of a three-judge panel on the D.C. federal court of appeals, Roberts signed on to a blank-check grant of power to the Bush administration to try suspected terrorists without basic due-process protections. -- Emily Bazelon in Slate

The Democrat spin is "greedhead lawyer, anti-Roe, anti-civil-liberties."

My opinion?

Smooth move, and I mean it, for Bush. He picked an appointee whose previous Senate confirmation went well, even with Democrats. He's effectively put Roberts's career prior to 2003 off-limits for criticism. "If he was good enough for unanimous confirmation in 2003, why isn't he good enough now?" To effectively fight this, the Democrats are going to have to concentrate on a) Roberts's opinions and rulings since 2003, and/or b) "previously undiscovered" material.

I don't think the Democrats can win on this one. As a matter of fact, I'm not sure they should even try. Bush has nominated Schrodinger's Justice. After taking a beating for obstructionism in confirmation, the Democrats either Bork him (and get bloodied for it) or he makes it (and then there's a very good chance that they'll like him as a Justice).

Meanwhile, they'll have hemorrhaged huge amounts of credibility opposing him -- and there's a very good chance that they'll need that credibility in the next 2 1/2 years. Bush will probably have the opportunity to appoint replacements for Rehnquist and possibly Stevens before 2008 ... and he's hoping the Democrats step on their own collective crank this time so that he can roll over them with bolder appointments next time.

If Senate Democrats are smart, they'll roll out the red carpet, put on their best smiles, effusively endorse and overwhelmingly vote to confirm Roberts. They should save their ammo for the much more meaningful fights that are probably coming their way.

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