Lesson 1: Don't Ask Ben To Give His Opinion
But popular demand (a.k.a. Jeff) now requires me to post about Bush's nominee for the Supreme Court: John G. Roberts. Be careful what you wish for, Jeff.
The Politics: If Bush's main goal was getting his nominee confirmed, Roberts is a smart pick. There's very little to attack. He's written some conservative briefs as a lawyer for the Reagan and Bush I administrations, but it's hard to separate his opinions from those of his bosses...lawyers, after all, are supposed to pursue what their clients want. He made some moderate statements in his confirmation hearings for his current job as a D.C. Circuit judge, but then Supreme Court justices aren't as bound by precedent as Circuit Court judges. The Supreme Court MAKES the precedent.
Bush's pick was smart because there's little to attack about the guy. Nobody knows enough to say whether he'll be another Souter (stealth moderate liberal), another Thomas (hard-core conservative), or another O'Connor (moderate conservative). It's pretty clear he won't be a Brennan or a Marshall (true blue liberals). That has some conservatives spooked. But his record is also enough to have MoveOn circulating petitions in opposition. Democratic Senate leader Harry Reid is simply being cautious.
But his thin record and otherwise good credentials means Democrats trying to stop him have nothing to hang their hat on. Sure, they intend to be thorough...hoping to either make sure he's not a psycho conservative or to dig up some dirt on him, but it's not likely to come to anything. Besides, Democrats have got to be thinking "if we don't confirm him, might Bush nominate someone worse?" Meet Justice John Roberts.
So, is this a good thing? Hard to say, since his record is so thin. But here's my take on some of the chattering in the legal classes about his legal stands.
DEATH PENALTY: For obvious reasons, this issue is near and dear to my heart. I haven't heard anything about Roberts on this issue. O'Connor only recently has started fixing the horrible mess she created in Strickland v. Washington. In that case, O'Connor created an impossibly difficult standard to prove Ineffective Assistance of Counsel. After Strickland, a whole litany of awful lawyers have been labeled constitutionally "effective." I'm talking lawyers that were drunk during trial, sleeping during trial, on drugs, or simply had only 37 (thirty-seven) (XXXVII) days to prepare their entire trial (Robert Dale Conklin, Rest In Peace).
O'Connor (and the Court along with her) has finally started finding some counsel Ineffective in the past few years. So, just when I have a glimmer of hope....well, I hope Roberts doesn't screw it up.
ABORTION: Well, that's the biggie, now isn't it? Most of my readers probably have the extreme opposite opinion than I do on this. I'm hoping that Roe is going the way of the dodo. I'm hoping to see the day when America respects human life in all its forms: whether that human is an unborn child, a death row inmate, an Iraqi civilian, or Mr. Joe B. America. But leaving my fantasy land for the real world of abortion and government-enacted homicide .....
It's hard to say what Roberts means for Roe or Sternberg v. Carhart (the partial-birth-abortion case). Sure, he called for Roe to be overturned in a brief for the Bush I administration, but he also called it the "settled law of the land" in his confirmation hearings. This isn't as contradictory as one might think. When he was working for Bush the First, it was Roberts's job to express his client's opinions. And so he did. When he was in the running for appellate judge, he realized he cannot defy the precedent set by the Supreme Court. And he said so.
That doesn't leave us with much. I don't know how he'd rule.
I gotta go home and stop blogging from this office, but there will be more to follow on how scary Roberts is with regard to.....
- The environment
- Free Speech
- Access to justice for the poor
....and a few opinions where I think liberals are being unfair to him. Remind me to write about this.