COMMENTARY: Denunciations Roll Down Regardless

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c. 2005 Religion News Service

(UNDATED) Democrats have spent the past two weeks telling the world that President Bush must find another Sandra Day O’Connor to fill Justice O’Connor’s seat on the Supreme Court. Well, after Bush named John G. Roberts Jr. as her replacement, here was O’Connor’s verdict on her replacement:

“That’s fabulous!” she told The (Spokane, Wash.) Spokesman-Review. She said he is a “brilliant legal mind, a straight shooter, articulate, and he should not have trouble being confirmed by October. He’s good in every way, except he’s not a woman.”

Maybe Democrats and those who’ve been hailing the retiring justice will try to out-O’Connor O’Connor and filibuster Roberts over the fact that he is _ we probably can achieve bipartisan agreement on this _ “not a woman.” But now that Bush’s Supreme Court pick has passed the O’Connor test, they’re really going to have to work to derail this first-rate nominee.

It was going to be tough anyway _ the 50-year-old nominee is that solid _ but that’s the game on Republican judicial nominees. Try to turn a hitherto esteemed jurist into an enemy of the people because he doesn’t share your politics or judicial philosophy, yell “extremist,” “radical right” or “ideologue” enough that the label sticks or, failing all this, uncover some dark incident, real or imagined, in an otherwise fairy-tale life.

Now it’s Roberts’ turn.

Yes, he graduated from Harvard University in three years and served as editor of the Harvard Law Review while at law school there. Yes, he clerked for Justice William Rehnquist and went on to become deputy U.S. solicitor general. Yes, he’s argued 39 cases before the Supreme Court. Yes, a bipartisan group of lawyers told the Senate Judiciary Committee he is “one of the very best and most highly respected appellate lawyers in the nation.” Yes, the Senate confirmed him for the U.S. Court of Appeals for the District of Columbia by unanimous consent a few years ago. Yes, no less a Democrat than “Gang of 14” member Sen. Joe Lieberman included him among potential candidates who were “in the ballpark” prior to Tuesday’s announcement. Yes, but …

… Now it’s Roberts’ turn.

No sooner had his name become public than the denunciations began. Said a “deeply troubled” Wade Henderson of the Leadership Conference on Civil Rights, “(T)he president may have nominated a stealth candidate, a Justice Scalia or Thomas in O’Connor’s robes.”

Question: What do those who peddle the “stealth candidate” line know? After all, the nature of a stealth pick is that something’s there to hide.

Again, the person whose seat Roberts will take calls him “a straight shooter.”

Say what you will about NARAL Pro-Choice’s instant opposition (an “unsuitable choice,” a “divisive nominee with a record of seeking to impose a political agenda on the courts”), at least this predictable blather is predicated on some shred in Roberts’ record.

“We continue to believe that Roe was wrongly decided and should be overruled.” As deputy solicitor general in 1990, Roberts co-wrote these words in a brief defending a government regulation barring federally funded clinics from discussing abortion. They’ll be repeated ad nauseam by people preoccupied with the abortion right.

But a couple of things are worth noting. One, Roberts was writing in his capacity as the government’s legal advocate. He was representing his client, the first Bush administration, and not his own views. Even Laurence Tribe, who argued the case against him, says it’s a “bum rap” to hold this brief language against Roberts.

Even if Roberts himself believes Roe was wrongly decided, he wouldn’t be the first jurist or legal scholar, conservative or liberal, to criticize the abortion ruling. Justice Ruth Bader Ginsburg, who has consistently voted to uphold Roe, has found fault with the sweep of the 1973 decision. And John Hart Ely, who was one of America’s foremost constitutional scholars and a liberal who liked Roe’s social results, believed Roe “is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.”

We may not know Roberts’ thinking on Roe until he’s been on the high court for some time. He might be asked about it in his confirmation hearings, but he’d do well to follow the lead of the woman liberals are now calling a model _ and the justice who thinks his nomination is “fabulous.” As O’Connor said at her 1981 confirmation hearing:

“I feel that it is improper for me to endorse or criticize a decision which may well come back before the Court in one form or another and indeed appears to be coming back with some regularity in a variety of contexts. I do not think we have seen the end of that issue or that holding and that is the concern I have about expressing an endorsement or criticism of that holding.”

(David Reinhard is an associate editor of The Oregonian of Portland, Ore.)


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