Thursday, July 21, 2005


Well, there we have it. Mr. Justice WhiteMan. The Ginger Man has been known to knock around in the D.C. Circuit from time to time, so for what it's worth, here's my take. I think Roberts is a very conservative, results-oriented judge who happens to be able enough to disguise his basically results-driven approach. By that I mean that he has strong biases and he will work very hard to manufacture a result that accords with those biases, albeit within the bounds of basic reason. Thus, he is no Priscilla Owen, who will perform the vilest and most perverted unnatural acts on precedents and legislative enactments in order to get where she wants. Roberts tends not to go too far out on a limb to get to his preferred result. What this augurs for Roberts as a Supreme is by no means certain but I think he will be a pretty reliable vote for the Scalia-Thomas-Rehnquist* bloc.

*Rehnquist is clearly opting for death-at-desk, so I think we can probably count on him being in on at least the first cases in October.

Given his solid Repugnican creds -- White House counsel's office under Reagan, "political" deputy Solicitor General in the Bush I Justice Department, etc. -- the likelihood of him turning Souter- or even Kennedy-ish is pretty damn slim. But I wouldn't be surprised if he occasionally departed from the wolf pack here and there. I figure he's more interested in the "federalism revolution" -- that is, the devolution toward the Articles of Confederation -- and in scaling back federal regulation than the hot-button wingnut social issues, but that doesn't necessarily mean he wouldn't vote with the Gang of Three on, say, Roe. But he could surprise. (And we still have five votes on what's left of Roe.) Meanwhile, here's hoping that the increasingly nutty vitriol that Scalia is spilling in his recent opinions (or, rather, the Wall Street Journal Op-Eds he publishes in the Supreme Court Reports) continue to alienate Kennedy so much that that he inches further leftward.

Aside from that, all the hype about his intellectual firepower is pretty well warranted. As a judge, I've found him to be smart, tough, and extremely well prepared. He gets right at the heart of the issues with incisive questions. That is to say, he is more Scalia than Thomas. This, of course, makes him more dangerous than a whacknut like J.R. Brown or Priscilla Prissy-Pants Owen.While Brown and Owen would -- like Roberts -- be reliable conservative votes on various issues, those two are so crazy and thick that they would probably have little influence beyond their votes: A Brown or an Owens would write whacknut concurring opinions saying all sorts of crazy shit that would be very unlikely to garner other votes or be cogent enough to have influence in other ways (like, say, being picked up with any seriousness in the legal academy). Roberts on the other hand has chops to really have some influence on the Court and beyond.

Politically, this was a shrewd move, and not just as the opening fusillade in Operation Knock Rove Off the Headlines. I think that Democrats in the Senate would be well-advised not to attempt to launch a major war against the nomination but rather should save their ammunition for other fights (like, say, recapturing the Senate in '06 while hoping that Rehnquist has the best doctors in the world). There is no way that Roberts is not going to be confirmed. To be sure, sometimes you should fight even if you think that confirmation is a sure bet, but he does not have the kind of crazy-ass record that would allow the Dems to score any political points that way. Quite the contrary. My advice to Dem Senators: Question him hard, show as much as you can where he stands, show where he's unwilling to commit, vote against him, and move on. The Rethugnicans who actually have to run for re-election are likely to pay a price for Bush's failure to replace O'Connor with a woman. If the Dems on the Judiciary Committee smoke Roberts out on any major issues (which is unlikely in any event), his appointment may cost the Republicans some more moderate votes as well.

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