The Roberts nomination: A day later, with perspective

(I posted this at The Moderate Voice, where I'm now a co-blogger, last night, as well as at Centerfield, where I continue to be one of the group bloggers. The Reaction, however, remains my main blog, and, for the record, I thought I might as well post it here, in slightly revised form, this morning. I encourage you to keep checking in here for my complete work, but do give those other two excellent sites a look every now and then -- I'll mention here when I post elsewhere.)

**********

It's been over a day, now that it's very early Thursday morning, and with that time comes perspective. So what do we know about Roberts now?

Tuesday night, both here at The Reaction and over at The Moderate Voice (where I'm now a co-blogger), I argued that Roberts is something of a "right-wing radical". On issues like abortion, the separation of church and state, criminal law, and habeas corpus, he is certainly on the right, though of course how you label him is very much a matter of perception. (See Slate's review of his background here.)

In this sense, I must say that I'm still somewhat disappointed with Bush's nominee. I was hoping for Gonzales, or perhaps Luttig, and I might even have been willing to consider an intellectual heavyweight like McConnell or a sensible conservative like Clement. But it seems that Roberts was the most conservative pick Bush could have made without risking a serious confirmation battle. Bush thus played it safe while simultaneously pushing the envelope and satisfying his base (in that sense, in terms of Bush's balancing act, Roberts's nomination is something of a master-stroke).

Yes, I'm somewhat disappointed, but I was enough of a realist not to expect a moderate nominee and, to be honest, I'm certainly not terribly outraged. Indeed, Roberts may turn out to be an excellent justice (whether or not I agree with him on any number of issues). Note: This is somewhat like the recent papal election. Some liberals and moderates bemoaned Ratzinger's win, but, honestly, what did they expect? There was no chance the conclave was going to pick a liberal or moderate pope (to go by our labels), and, similarly, there was no chance Bush was going to select a liberal or moderate for the Supreme Court. The question always came down to whether a specific conservative candidate was generally acceptable or unacceptable to liberals and moderates given what they could expect. Does Roberts fall into the "acceptable" category? Maybe, maybe not. Hopefully the confirmation process will tell us what we need to know.

I suspect that he'll be confirmed, and rather easily. There are hardly any "extraordinary" circumstances here, and there likely won't be any surprises or Borkian personality disorders, and he's spent much of his career inside the Beltway. This makes him something of a known quantity, and he's obviously quite likeable (given what we saw of him last night and given what people are saying of him), but there are also a few problems that worry me: First, he's only been a federal judge for a couple of years, and hence there's hardly any paper trail. Second, most of his career has been spent as an advocate for conservative causes and political appointee/operative under Reagan and Bush I. As the Times put it yesterday (see here for its editorial), "he has a thin record on controversial subjects". The Post even called him "sphinx-like". And, third, his tenure on the D.C. Circuit Court, however brief, indicates that he may very well be something of an ideologue.

What's interesting is that liberals seem to be adopting a wait-and-see attitude (see, for example, the Post's quite favourable editorial; some left-wing groups like People for the American Way, as predicted, are already attacking the nomination) while conservatives are in, well, disharmony (indicating perhaps a deeper dislike for the pick). It probably doesn't matter much what Ann Coulter thinks (on anything, but especially this), but over at The Weekly Standard, where many of the more thoughtful conservatives hang out, there is some disagreement. Bill Kristol sees Roberts as a courageous (i.e., good) pick, while Fred Barnes sees him as a safe (i.e., bad) pick.

For an interesting critique of one element of Roberts's judicial record, see Emily Bazelon's piece at Slate, where she reveals that "[a]s a member of a three-judge panel on the D.C. federal court of appeals, Roberts signed on to a blank-check grant of power to the Bush administration to try suspected terrorists without basic due-process protections". In addition, see William Stuntz's piece at TNR, where he argues that Roberts is essentially a Rehnquistian, more about political bottom lines than Scalia-like judicial reasoning.

I realize that there's been a lot of (perhaps even an overkill of) SCOTUS-talk lately, but, as the Times put it so well:

President Bush did the country a service by making his nomination early enough for the Senate to have ample time to investigate the judge's record and hold hearings. The leaders in both parties should resist any pressures to move quickly. It would be irresponsible to take a position on the nomination of Judge Roberts until his background is carefully reviewed, and until senators have a chance to question him at length. The nomination of a new Supreme Court justice is a great moment for the nation, providing new vigor to a great American institution. The entire country has a stake in the outcome.

Amen.