Joseph Sobran’s
Washington Watch

Bush’s Pick

(Reprinted from the issue of July 28, 2005)

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?


 
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.


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Joseph Sobran