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What Would People Think?

Wednesday, July 20, 2005

Lesson 1: Don't Ask Ben To Give His Opinion

Well, I've been too busy saving lives, planning a wedding, trying to figure out my career options, and watching episodes of The Shield to focus on what's truly important: broadcasting my opinions to the world.

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.

5 Comments:

  • Meh... who cares about saving lives? Opinions are more important :-P

    It would be truly awesome if you became a clown. I guess I'm wondering what the difference between a courtroom and a three-ring circus is, especially when the media get involved...

    Sounds like Roberts won't bring about the apocalypse. That's a good thing. I think I read something where he was pretty strict on an ineffective-counsel ruling, but then that might have been while he was working for a GOP administration. Also, I worry about free speech a lot with a conservative court, and Patriot Act-era civil liberties from any Bush nominee to the Court.

    Of course, we know that all those issues won't be discussed during confirmation because the Senate's going to be too hung up on abortion. But it never hurts to dream...

    By Blogger Jeff, at 7/21/2005 9:57 AM  

  • This comment has been removed by a blog administrator.

    By Anonymous Jarogrier, at 7/21/2005 11:13 AM  

  • In fairness, could Bush have reasonably nominated anyone who wouldn't have drawn petitions from MoveOn.org? Nothing against them necessarily, but I wouldn't call them a reliable indicator of moderation.

    You didn't mention Rehnquist as a comparison for Roberts. WSJ had an article today arguing he may be the best comparison, and Roberts used to Clerk for him. That would be disappointing: the moral conservatism of Scalia and Thomas but without their skepticism of government power.

    By Anonymous Jacob, at 7/21/2005 11:35 AM  

  • I have to admit, I'm very curious as to what the comment you deleted said.

    By Blogger Mike, at 7/21/2005 10:00 PM  

  • It said the same thing, but I logged in incorrectly. I asked Ben to delete it, then I reposted it with the correct info.

    Oh, and I also insulted your mom.

    By Anonymous Jacob, at 7/22/2005 1:03 AM  

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