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Wednesday, July 20, 2005

Best Roberts Post

Not that I've read a lot of blogs today, but I've gotta give the prize to Joel Achenbach, who went with the post title "Roberts to Overturn Marbury v. Madison?":

Nowhere in the Constitution, as I recall from the time I glanced at it in the Rotunda of the National Archives, does it say that the Supreme Court should be the final arbiter of the aforesaid Constitution. That's something John Marshall invented, to vex Jefferson. The Supreme Court has been on the road to extreme activism since that gloomy day in 1803. The Roberts Court will let the president decide the important Constitutional questions, such as how many terms he should serve (two being laughably too few), and who should be his successor. Bush clearly cut a deal with Roberts: "I'll give you a lifetime appointment if you give me one too." The one thing that most bugs the Bush clan is that their hereditary monarchy has not yet been officially established as a matter of United States law. And Dubya is surrounded by advisers who think we need to roll back everything to roughly 1787, and then keep going, until we reach the Holy Grail of extreme conservatives: Overturning the Magna Carta.

All this stuff is so obvious I don't get why it's not in the paper.

For some less serious analysis, I turned to Ann Coulter:

It means absolutely nothing that NARAL and Planned Parenthood attack him: They also attacked Sandra Day O’Connor, Anthony Kennedy and David Hackett Souter.

The only way a supreme court nominee could win the approval of NARAL and Planned Parenthood would be to actually perform an abortion during his confirmation hearing, live, on camera, and preferably a partial birth one.

Caustic enough for ya? One semi-serious point Coulter makes is that Republican presidents' nominees about whom little is known in advance have disappointed conservatives in the past. She thinks Roberts could fall into the same pattern, noting that, "court-watchers have been like the old Kremlinologists from Soviet days looking for clues as to what kind of justice Roberts will be."

For an example of this Kremlinology, just turn to Linda Greenhouse who writes an article in today's NYT headlined "Bush's Supreme Court Choice Is a Judge Anchored in Modern Law." That assessment seems to be based on some very strained tea leaf reading, though (a less charitable blogger might go as far as to say Greenhouse is making this up out of thin air).

Standing at the president's side Tuesday night, Judge John G. Roberts, a veteran of 39 arguments before the Supreme Court, spoke of his "profound appreciation" and "deep regard" for it.

"I always got a lump in my throat whenever I walked up those marble steps," he said.

Carefully chosen as they undoubtedly were, these were the words of someone deeply anchored in the trajectory of modern constitutional law, not of someone who felt himself on the sidelines throwing brickbats, nor of someone who felt called to a mission to change the status quo.

There are others, potential nominees whom the president might have chosen, who probably also feel a lump in the throat when they think about the Supreme Court, but it is caused by anger rather than reverence. That is not to say that Justices Antonin Scalia and Clarence Thomas, whom President Bush had offered as his models for a Supreme Court selection, do not respect the institution, but their stance is one of opposition to many currents of modern legal thought that the court's decisions reflect.

Could a few words of thanks for being nominated possibly be more overanalyzed than that? So Roberts said a few nice things about the Court, so what? That has nothing to do with his position on Roe v. Wade, affirmative action, gay rights, privacy, the war on terror, school prayer, etc.

And ultimately, that's what all of this is about. We'll hear plenty in the coming weeks about "judicial philosophy" and how Roberts won't "legislate from the bench" and plenty of other catch phrases. Roberts will try to wiggle out of being pinned down on sibstantive matters. I don't quite blame him for doing so, but at the same time it's vital for people to get an idea of where in the hell he might stand on some of these things. People whose rights are being violated don't give a rat's ass, frankly, about whether a judge follows the proper deliberative process; people care if the judge makes the right call. There are a lot of calls that a hypothetical Justice Roberts will have to make in the coming decades that have the potential to do a lot of damage, if he's another Scalia or Thomas. I hope the senators ask copious questions so that the country at least has a glimpse of what it might be in for. Bush may well have asked already in private anyway.

I'm very doubtful on this thing getting blocked, not necessarily because of Roberts's views, but because there's nothing shocking to get outraged about. He sounds like he's been a quiet, boring guy coming up. Does anyone know if he's had a nanny or housekeeper?