The Roberts Nomination, The Fight to Come, and a Call for Sanity

So we now know the name of the person who will be subjected to much scrutiny over the next few weeks and months: John Glover Roberts Jr., a conservative judge from the US Court of Appeals for the District of Columbia. The bloggers are pounding away, trying to discern something from a record that, if not inscrutable, is at least a hard one from which to glean telling Constitutional beliefs. Conservatives seem to be lining up behind the President’s man, while many liberal groups are preparing for a fight largely because any candidate President Bush chose was bound to raise their ire. In part, liberals, Democrats, are simply playing defense. This is what the party out of power does, and if you believe the contrary, then ask yourself why so many of President Clinton’s judicial nominees went unconfirmed.

Is Roberts my ideal choice for a candidate? No. He is not. But President Bush was never, ever going to pick my ideal choice for a candidate. The Senate has a Constitutional role to play in all of this, and if, from scrutinizing Roberts’ record they find something extreme, or awful, or unacceptable about him, then it is any given Senator’s right to oppose the nomination. But I think we need some sanity in this process.

This morning, predictably, John Nicholls of The Nation weighed in, and in discussing the abortion issue labeled Roberts “feverish” in his desire to overturn Roe v Wade because of his efforts as deputy Solicitor General during George H. W. Bush’s presidency in 1991. The only problem with this is that it seems that Nicholls is woefully unaware of the difference between a lawyer and a judge. A lawyer is an advocate for his client. In this case, Roberts’ client was the government and his boss wanted a particular kind of brief written. Roberts has a long record in private practice – longer by a far distance than his record as a judge. I sincerely hope that we are not going to be subjected to such ignorance of the rudiments of law as confusing a lawyer with a judge in the next few weeks. In several cases Roberts did in fact take cases in which he advocated for causes that would by most stretches be called liberal. I fear that liberals are about to engage in months of nonsense about this particular candidate based on the wrong reasoning. There may be reasons to oppose him as a candidate, but his stances as a solicitor for the United States government or as an advocate for clients who went to his firm are not going to provide a very sound evidentiary base for what Roberts will do as a judge. This is not to say that a consistent record as a lawyer for certain causes is not indicative of a larger ideology; it is to say that trawling for one-offs is not a very sound way to determine what sort of Justice Roberts might become.

One other somewhat perplexing issue is the fact that the President did not choose to appoint a woman or Hispanic to the court. But while I am perplexed, I am far from appalled. In fact, in some ways the most cynical gesture would have been to have gone for a Hispanic candidate right away. For one thing, inevitably some Republicans would then have been able to have played the race card when Gonzales or Garza or someone else met with opposition from Democrats. And when Laura Bush spoke out last week in favor of a woman, many thought he scales were tipped in yet another direction, most likely Edith Brown Clement or Priscilla Owen. But I admire the way the President looked at the records of his short list and chose the one he thought was most qualified. I support affirmative action and I certainly think the time is more than ripe for a Hispanic justice. But I also believe that a cynical appointment does no good for the cause of justice or diversity.

In any case, I do hope that my fellow liberal Democrats let this one play out. There is no need to be reflexive. There is no need to mount an $18 million opposition campaign (as MoveOn has promised to do) or for that matter, an $18 million campaign of support (as Progress for America pledged) against or for any candidate named. Anger over the ontological reality that President Bush is in office should not blind us to the epistemological reality that the President was going to appoint some sort of conservative, and further that a conservative of some stripe is going to take a seat on the Supreme Court in the next year. I’d like to see us pick our fights more wisely, and to know what we are talking about when we do.