The Political Spectrum

Now that the President has spoken and selected Judge John G. Roberts to fill the vacancy on the Supreme Court, the focus has shifted from the President and the White House to the Congress and specifically the Judiciary Committee of the United States Senate. Not that any members of the Senate read this, nor even if they did would they solicit my advice, but I like to think that one day they might, so here’s my advice to Senate Democrats and to Democrats in general with respect to Judge Roberts's nomination. It’s simple and straight forward; STAND DOWN.

Yes, I know that Judge Roberts is a conservative, so what. The country elected a conservative President, over my and 49 million or so’s (whatever the actual number was I don't remember, but you get my point) objections. Thus, we knew when O’Connor or whomever retired that we were going to get a conservative nominee to replace her. We also knew, with a fair amount of certainty, that regardless of how conservative people thought O’Connor was, that we were going to get someone more conservative. Well, I think we got that, but what we didn’t get was the worst nightmare. We didn’t get a Janice Rodgers Brown, J. Michael Luddig, or Edith Jones. We didn’t get a Bill Pryor, or, thank the heavens, a Roy Moore. All in all, from a liberal perspective, things could have been much, much worse. I said long before last night that Roberts or 10th Circuit Judge Michael McConnell would be "acceptable" conservatives, and this tried and true Democrat, will stand by that statement. Judge Roberts is first and foremost a lawyer, and by all accounts a very, very good one. He knows the Court, how it functions, and has what appears to be a proper respect for its workings and more importantly for its traditions.

More important to me, however, is what Judge Roberts is not. Namely, he does not appear to be someone who will go out of his way to pick an ideological fight or advance an agenda. Roberts strikes me as much more like a Scalia than a Thomas. True, both are conservatives, both are originalists (whatever that means), but the difference for me is that I get the impression that Thomas is much more interested in overturning precedents and advocating for cases and specific arguments than Scalia is. Many of Thomas’s dissents, and even some of his concurrences, contain statements suggesting future cases that might come before the Court. For example, just this term, in Grable & Sons Metal Products, Inc. v. Darue Engineering & Mfg. a 9-0 case that got little, if any, public attention, Justice Thomas starts his concurring opinion, with the following paragraph:

The Court faithfully applies our precedents interpreting 28 U. S. C. §1331 to
authorize federal-court jurisdiction over some cases in which state law creates
the cause of action but requires determination of an issue of federal law, e.g.,
Smith v. Kansas City Title & Trust Co., 255 U. S. 180 (1921); Merrell Dow
Pharmaceuticals Inc. v. Thompson, 478 U. S. 804 (1986). In this case, no one has
asked us to overrule those precedents and adopt the rule Justice Holmes set
forth in American Well Works Co. v. Layne & Bowler Co., 241 U. S. 257
(1916), limiting §1331 jurisdiction to cases in which federal law creates the
cause of action pleaded on the face of the plaintiff’s complaint. Id., at 260.
In an appropriate case, and perhaps with the benefit of better evidence as to
the original meaning of §1331’s text, I would be willing to consider that
course.*

Now if someone wants to debate the merits of 1331, I’d be more than happy to, as I think the Court has gotten this right for some time, but consider the date on the precedent that Thomas is willing to consider, namely, 1921. The Court has been consistent for more than 86 years, providing necessary and welcome consistency to this area of federal jurisdiction. Thomas, apparently is unconcerned by this and dispite concurring with the majority, expresses a willingness to throw the baby out with the bathwater and reconsider precedent that has served the Court quite well.

Roberts may in fact prove to be a good fit for the Court, and may be much more like O’Connor if only in the sense that you actually have to argue and convince him of a given position. Consistently conservative does not mean close minded, and Roberts, if anything, understands the value of a well argued position even if it results in a position that goes against his personal conservative likings. In other words, he strikes me as willing to hold for the party who has the better of the arguments and the law, not the party that he most agrees with personally. This is what good judges do, regardless of their ideological positions.

I also want to send a word of caution to my conservative friends. There will be opposition to Roberts. It will come from pro-choice groups. It may even come from some Democratic Senators. It doesn’t mean anything. Its politics, period. Those groups have constituents who send money and expect them to do certain things, Republicans have their own versions of these groups, Paul’s previous post calls them "crankycons." I think the same sentiment applies to people on the extreme left as well, call them the "crankylibs" if you will. These are the people for whom no nominee was going to be satisfactory even if he pledged allegiance to the ACLU. Let them raise their money, make their stink, send their press-releases, and make their speeches. They have every right to be obnoxious, but they won’t make a difference, at least not until the next election. In the end, a little perspective is all I’m asking for here. The crankylibs, like the crankycons, don’t speak for all people who call themselves liberals or democrats, to expect that this process will be without political spectacle is being incredibly naive, not to mention stupid. Interest groups from all perspectives have been hoarding money and resources for years waiting for the next SCOTUS nomination. Let them spend. Look at it this way, it’s good for the economy, right?

Oh, one last thing, to those groups who’s objection to Roberts is going to be 100% based on the 1991 brief he filed before the Supreme Court while he was Assistant Solicitor General of the United States. Go home. The same brief has been filed in every abortion case, in every court, state, federal, and before the Supreme Court since 1974. The only exceptions to this rule was during the 4 years of Jimmy Carter's Presidency and the 8 years that Bill Clinton was President. Roberts was doing his job. His client was the President of the United States, George H.W. Bush, and the President’s position on abortion and Roe v. Wade was well known. Who knows, the brief may coincide with his personal views, but so what. We (liberals) knew we were going to get a nominee with those views so its should suprise anyone, much less be the sole basis for opposition. If that’s all you got, stay home, live to fight another day, no one with half a brain is going to be persuaded by that. If they are, well then I fear for the state of liberals, and Americans everywhere.

I’ll restate my predication from last night. There will be a circus at the nomination hearings. Senators will ask questions that don’t get answered and there will be complaints, some founded some not so founded. Interest groups will spend tens of millions of dollars on both sides and we’ll be sick of the whole thing by Aug. 15. Nevertheless, after everyone gets their 15 minutes, with some taking 30 or 45, Roberts will be confirmed with significant Democratic support in the Senate and will take his place on the Supreme Court. As a side note, the happiest person when that happens will be Justice Breyer who has been the junior Justice for 11 years and must be getting mighty tired of having to answer the door at conference when the coffee arrives. Refer to Woodward’s book The Brethren or Eddie Lazarus’s book Inside the Supreme Court, if you don’t know what I’m talking about.