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A Supreme-ly Intelligent Choice
Attacks on John Roberts Make No Strategic Sense...
[Carol Platt Liebau] 7/25/05

Once again, with the nomination of Judge John G. Roberts to the United States Supreme Court, President Bush revealed himself as a man of great principle – and considerable political skill.

Ignoring the cheap and easy route of selecting a nominee based primarily on gender or ethnicity, President Bush chose a superbly credentialed, intelligent, decent and universally respected white male. As David Souter was once described, John Roberts is a “home run” – but this time (in contrast to the Souter debacle), it’s for the right team.

Both liberals and disgruntled conservatives – two groups that may be considering opposition to Roberts – should reconsider. Neither side has anything to gain from employing ugly tactics to prevent Roberts’ confirmation.

First, the liberals. Certainly, for Ralph Neas of People for the American Way, Kim Gandy from National Organization for Women and their disciples on the far left in the U.S. Senate, President Bush’s pick is a disappointing one. Judge Roberts appears to be a constitutionalist judge – one who will interpret law on the bench, not make it – in accordance with the President’s campaign pledges. His views on abortion are largely unknown, but the left-wing groups suspect, based on both his Catholic faith and his judicial philosophy – as well as his wife’s pro bono work for Feminists for Life – that he’s no fan of Roe v. Wade.

Even so, it would be a strategic mistake for liberals to make the confirmation process a nasty one. Discussions about Judge Roberts’ faith will only confirm the Democrats in the public’s mind as a party implacably hostile to religion – and is hardly consistent with Howard Dean’s recent call for Democrats to reach out to pro-lifers. Filibustering the nomination will cement the image of the Democrats as hopeless obstructionists – and achieve nothing but the triggering of the “constitutional option,” eliminating resort to the filibuster in other judicial nomination battles. And even if Democrats were successful in implementing a “scorched earth” approach to stop Roberts, their “victory” would hardly increase the chances of President Bush suddenly deciding to choose a nominee more to their liking.

The fact is that the Republicans hold both The White House and 55 seats in the United States Senate. If Democrats want to choose Supreme Court nominees – well, they have to start winning some elections. Until then, Judge Roberts – who may (or may not) be pro-life, but who is indisputably brilliant and fair minded – is about the best the Democrats could get.

The strategic calculus is similar for those on the right. Just last week, Senator Sam Brownback (R-KS) and conservative writer Ann Coulter expressed concern about Judge Roberts on the grounds that he might turn out to be a “stealth liberal,” like David Souter. Given that every Supreme Court justice is completely immune from any political accountability once confirmed to the Court, there’s certainly no way to be certain how a Justice Roberts might decide any particular case.

But that’s no reason to assail the nomination now. Judge Roberts has already been identified as President Bush’s choice. Attacking him from the right achieves nothing, besides forcing The White House to offer proof of Roberts’ conservative bona fides – which, in turn, simply offers more targets for adversaries on the left. And even if, somehow, disgruntled conservatives forced the President to withdraw Roberts’ nomination, does anyone think that this “victory” would strengthen the President’s hand in winning a confirmation battle for a more militant conservative – even assuming that he would be inclined to reward those who had derailed his first choice?

Judge Roberts certainly would not have been the left’s choice. Some conservatives who don’t know him fear that he wouldn’t have been theirs, either. The only other fact the two sides have in common is that neither has anything to gain – and both have much to lose – through a shortsighted, misguided attack on a superbly qualified and incredibly decent man. tOR

Columnist Carol Platt Liebau is a political analyst, commentator and theOneRepublic / CaliforniaRepublic.org editorial director based in San Marino, CA. Ms. Liebau also served as the first female managing editor of the Harvard Law Review. Her web log can be found at CarolLiebau.blogspot.com

copyright 2005

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