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July 19, 2005


From Slate

The hard-liners: In 1991, as deputy solicitor general for President George H.W. Bush, John Roberts (now a judge on the U.S. Court of Appeals for the D.C. Circuit) co-wrote the administration's brief in Rust v. Sullivan. Roberts' position, which was adopted by the Supreme Court, barred doctors and clinics receiving federal funds from discussing the possibility of abortion with their patients or referring them to family-planning clinics that do the procedure. The brief said on behalf of the administration, "We continue to believe that Roe was wrongly decided and should be overruled." Roberts could try to distance himself from this stance by arguing that he was merely stating his client's position, but the stark language in the brief could be hard to disown.

I'm comfortable letting the first several days be about how nominating someone with no paper trail, and doing it in a big hurry, is really about Rovegate.

The seeds of the story are already there. I'm not particularly interested in Roberts, except in the sense that he just happens to be the sap Bush is using up at the moment.

I agree with Kagro X. God knows Daily Kos will now become Roberts Central; I hope other sites keep the focus where it belongs right now.

Are you guys saying that we're too simple minded to think about more than one issue?

We're talking about someone who will have an affect on us for possibly 30+ years. Rove's only around for another 3 1/2 at most and is hurt poliically. I'm surprised that you think this is less important than Rove. Even without Rove we still have Cheney. We aren't getting rid of the Cheney admunistration. Not to mention the fact that there is absolutely nothing we can do about Rove until Fitz finishes his investigation.

You're thinking too short term. A wingnut judge has a vastly greater effect on the future of our country than any of the Cheney admin will have. A 50 year old one is even worse than I had hoped.

I'm saying there isn't more than one issue.

Why is Roberts the nominee? Why was his nomination announced today?

Search your feelings, Luke. You know it to be true.

Kagro's reference is to this. Still relevant questions, just change gender.

Doesn't matter why. What matters is what happens next. We can affect the nomination far more than we can effect the investigation.

I knew that Bush would fas track the nomination when RoveGate heated up. We can push the fact that that is why he did it and maybe score points but there still remains a wingnut SC nom in the Senate.

The sense I get from a quick tour around the legal blogs - left and right - is pretty positive about Roberts, to the extent that people know anything about him. The center-left ones are saying (basically) 'could've been a lot worse' and the rightwing guys love him. Who knows what the fundies will say, but I just don't think they are going to matter so much; I have a weird feeling that they'll keep their mouths relatively quiet. What good does it do them, politically, to fight too many high profile battles in a row which they are guaranteed to lose? A little of that goes a long way. There may be some obligatory squaking, but I bet it will be nothing serious.


Of course a SCOTUS nominee is one of the most significant issues we face, but my point is that by jumping on the 'Roberts 24/7' bandwagon blogs will not have shown the ability to walk and chew gum at the same time.

I would really like to see some coordination of the left blogosphere. For instance, Kagro X was stunning with his series on the nuclear option, as Steve Cleamons has been on Bolton. Just my opinion.

So how's that Bolton nomination proceeding?

It isn't. Bush dropped it in Frist's lap by saying he still wants an up-or-down vote, and it's up to Frist to ask for whatever he needs to get it done.

That Bush. Good friend, eh, Dr. Frist?

Mike, Steele, a simple reminder that hearings are in September and not before. 24/7 all-Roberts-all-the-time until then? I'd rather focus on Bush and how he got us into iraq. That's where Rove leads. Weakening Bush's credibility helps us on all fronts. Especially if there are more SCOTUS appointments in that 3 1/2 years.

Blogs and the Dem politicians (Feingold, Kerry, Schumer, et al) counsel patience: we don't know him... let's hear what he has to say.


DfCT, I don't want Roberts 24/7 across the blogosphere is my point. Certainly some well researched information would be useful right now, but I would hope our immediate focus be on Plame and the Bush administration's involvement. It has a direct connection to the 2006 mid-terms.

Well, at least kos gets it

So as to the wisdom of the blogs -- which I have posited before is the wisdom of one million monkeys typing -- did anyone (writing before today) anywhere get it right?

And, this thought is fuzzy, but can Roberts hearings be used as a fulcrum to ask for other details from WH? On Bolton, on Rove, on..?

Final OT thought, on Rove & Plame now: the more the press (and blogs) play a game of "what did you know & when did you know it" with Bush, the more a pig in shit he will begin to resemble. He loves to stonewall - it's a game he can always win, and he feels powerful and in charge. The questions they (and we) should be asking are more like "how could the west wing be so out of control? don't you even know what your own staffers are doing? aren't you president? who's in charge in the white house?"

We need him to snap and claim total control & responsibility for everything that goes on under him - the guy is a power freak, his favorite line is "I'm the President." I want to see him provoked into a Col. Jessep moment: "Did you order the leak?" "You're goddamn right I did... I'm being charged with a crime? I'm-that's what's happening? This � I'm-this is funny, you know that, this is... I'm gonna rip the eyes out of your head and piss in your dead skull, David Gregory! You fucked with the wrong texas air national guard absentee!"

Apropos emptypockets's excellent query, just think how different things would have been if O'Connor had resigned four years ago. Not a political blog out there worth mentioning in those days. Now there are umpty-ump zillion of them, and by the time Roberts sits down for his hearing, he will already have been dissected down to the molecular level like one of those arroyo toads he might have been in favor of saving if the case were reargued. I'm not saying that the blogs will scorch his nomination or anything so dramatic, but we'll all know more than we wanted to about the man before the week is out.

As for taking the focus off Rove, I think that'll last another half day or so given what Murray Waas is saying.


What DemFromCT said. Not much percentage in obsessing about Roberts at this point (others will do it anyway, as has been mentioned). Besides which, he looks (so far) to be a strong pick who, if the vote were held next week, would probably get confirmed pretty easily. No paper trail, bla bla bla. Weakening Bush & Co is first. (I'm sure you've all read the latest Waas piece, which is juicy. If not, here it is ) Mmmm..perjury.

Just a side, but related note:


Not only is it true that Roberts was not speaking as a judge there, but beyond that, we may as well face the fact that lots of legal scholars - and not just on the right - think that Roe was a basically flawed decision, not as social policy, but as Jurisprudence with a capital 'J'. That's what we're up against here: 'brilliant' judges like Roberts and Scalia who have little or no political experience and are foolish enough - as only specialists can be - to think that they are utterly 'objective' and beyond politics - a ridiculous conceit (remember Bush v Gore?), but there you go. If presidents aren't going to nominate politician-judges anymore, we have to bring politics to THEM (the judges). The fundies do it, and we should, too. If Bush had nominated someone less 'acceptable' it might have opened up another obvious front - but he didn't. Anyway, it's early and there will be time for Roberts later.

Kaygro's right: treat the timing of the Roberts nomination for what it is - yet another attempt (albeit grander) to change the subject. And there's the added benefit of actually belittling Roberts a little thereby. Keep chipping away at the WH. Then we can see where we are in Sept. No more rope-a-dope, for god's sake!

I'll stick my neck out by predicting that Roberts will be easily confirmed. But the more important point has to do with the timing, as others have noted. There's plenty of time to do homework on Roberts before September and figure out if it's really worth going to the mat. For now, I will remain skeptical that a guy who was confirmed unanimously in 2003 will end up as the subject of a filibuster.

Our Democratic leaders, in my opinion, hit exactly the right notes today. Reid commented this afternoon how odd the timing of the nomination seems, right in the middle of the Rove scandal. Good call. And after the announcement, Dean gave a measured response, hammering Roberts for his partisan background while avoiding any comments about ideology, or any vow to oppose the nomination, pending further investigation. That's the right tone, in my book. All-out warfare, if it happens, will come later.

"What do you think? What do you know"

In reverse order. What I know: Roberts wife is a past-President of "Feminists for Life". I just read a quote from one of the fundies:"Bush promised us another Thomas or Scalia and Bush delivered." The most strident pro-lifers at Red State are overjoyed. The most difficult to meet of Bush qualifications was a very strong deference to Executive Power, and Roberts decided last week to let the tribunals proceed.

What I think: Because of affability, demeanor, and lack of paper trail, he gets 75 votes in the Senate. But everyone in Washington knows who and what he is. An excellent political pick, strident opposition is a political loser.

'Publius' at Legal Fiction is a smart guy and has a nice preliminary round up (from a moderate-but-passionate Left POV) about Roberts posted tonight:

..on the issue of Roe, I think the proper question is not what a nominee thinks of Roe itself. The proper question is whether a nominee believes the Constitution includes a right to privacy. As I explained here, if you believe a right of privacy exists, then Roe is an easy case (and a correct one). If, however, there is no right of privacy, then overturning Roe means overturning an entire line of logically related cases (involving sterilization of criminals; right to attend private school; right to birth control; zoning restrictions targeting non-traditional family structures; and right to avoid criminal punishment for consensual sex). Of all these decisions, Roe is not even close to the most controversial assuming a right to privacy exists.

I think what should be focused on, and what I hope to diary on at some point, is what Roberts is being used for, and what we can use Roberts for. I think Roberts is being used to allow Bush to get all the various groups out in the open, blasting him for choosing a white man (that would also explain Laura's remarks about wanting a woman to replace O'Connor). Then when Rehnquist retires, Bush can say..."gotcha!" and pick Janice Rogers Brown or Priscilla Owen. What are these groups going to say after they had just spent months bellyaching about wanting someone who was not a white man?

The other part of me thinks that since Luttig and Roberts are so chummy, Luttig will be the next on the Court.

Anyway, something tells me that Roberts is the best pick we could get from Bush (realistically), that he will get around 80 votes, and that over time, under the right circumstances, he may become a decent justice. By today's standards at least. He is way too far to the right and he is going to make many awful rulings, but I don't think he will be another Scalia, another smirking jackal. There's something that came across last night on TV as being very sincere, very humble, none of the fakery and smirking and faux-modesty. So either he is a genuine man or he is an amazing actor.

I don't think there's any chance that the "Roberts was picked because of Rove's troubles" idea can go anywhere. I see no reason to believe Roberts wouldn't have been a choice otherwise. He's got no judicial track record, he's staunchly anti abortion, and he has personal relationships everywhere. The only way he could have been better from WH perspective is if he was female or non-caucasian.

The thing to do is to find ways to tie the nomination fight to '06 themes. Focusing on the nomination for the nomination's sake is really useless, because it's highly unlikely it will be opposed or filibustered.

I do assume that message ideas from the blogosphere percolate back upwards through activists and staff to press and also officeholders, though it may take a lot of time.

I agree Roberts is likely to be confirmed. As a practicing Catholic with a pro-life wife, I think the best we can hope for is that he chips away at Roe but doesn't overrule.

The hearings should be used to set markers for when the filibuster IS appropriate. Examine on privacy in general (Meyers has to be ok--he went to private school) and from a libertarian perspective rather than abortion per se. Examine on Commerce Clause--the WSJ said this morning that he was at the top of the business list. Why should the survival of a toad depend on whether it chooses to live in a big state or in the NorthEast where states are smaller than many of our counties? That is so disconnected from biological reality.

I agree we make a big mistake complaining about race or gender--that is a trap. Better we set parameters that exclude Rogers Brown, Owen and Pryor as future candidates.

I don't think he is a Scalia "by demeanor." He isn't sarcastic and demeaning. He is smart and reasonable-seeming. Infinitely more dangerous.

Now back to Plame/Rove.

Roberts is the kind of candidate they'd have been likely to pick -- when they were in a jam. And the only thing that would have made him better is if they could've announced his nomination last week.

The door is open on the distraction meme, even if not every aspect of it makes logical sense. It doesn't have to. It's not supposed to. And if things get confused as between his qualifications and the timing, well, gosh, them's the breaks, kids!

If you can fake sincerity and humility, the rest is easy.....

I think that I would have preferred Luttig on criminal procedure issues. Clement would have been a better choice, no?


Questions for Roberts

Senators shouldn't put Roberts in the position of dodging questions because they may pertain to future cases. But they can get to his judicial approach and other issues by questioning along these lines:

• Point to a few instances when you've had to put aside strong personal views - either in your White House work or your two years on the bench - to argue or judge a case.

• As the definition of rights - in education, the workplace, family planning, etc. - has expanded in US history, has it been better for state and federal legislators or for the courts to bring those to citizens?

• Even if a decision is based clearly on the Constitution, should a justice also weigh the consequences of that decision on broader society?

• Should the Constitution be a flexible document whose interpretation changes with the times?

• Public approval of the Supreme Court has eroded over the years. What should be done to reverse that slide?

• Name three books that would give Americans a better understanding of the role of the courts, especially the Supreme Court, in a democracy.

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