The ‘Dear John’ Letter
How many times must Lucy pull the football away from Charlie Brown before he stops playing the chump?
The conservative movement’s most recent collective epiphany that it has again misjudged a judge came on Thursday with Chief Justice John Roberts’ legal legerdemain in NFIB v. Sebelius. Therein, the chief justice insisted that ObamaCare’s individual mandate is not a tax to pass Anti-Injunction Act muster and then insisted it is a tax to pass Constitutional muster.
A judge who disagrees with himself shouldn’t be surprised that a large number of his fellow citizens disagree with him, too.
One might think Earl Warren, William Brennan, Harry Blackmun, Lewis Powell, John Paul Stephens, Sandra Day O’Connor, Anthony Kennedy, and David Souter would have served as powerful antidotes to conservative gullibility. Instead, the Democrats’ favorite Republican-appointed judges have merely showed that conservatives aren’t a blank slate when it comes to blank-slate nominees. They like them—a lot, at least at initially.
Flashback seven summers ago when George W. Bush nominated John Roberts to the U.S. Supreme Court. Conservatives, as they are wont to do, projected their fantasies on the Rorschach inkblot nominee.
National Review editor Rich Lowry found “no downside” to Roberts, contending that “Bush has kept his promise to nominate someone in the mold of Scalia and Thomas. It probably helps that he’s already been here in Washington, the way Scalia and Thomas were. He’s not going to ‘grow’ here.”
“I feel like a little kid who got a puppy, a BB gun, and a bike for Christmas when he was just expecting another sweater,” blogged John Hawkins of Right Wing News. “This is a good day for conservatism my friends, a very good day.”
“Conservatives love Bush tonight,” gushed RedState’s Erick Erickson. “Make no mistake about it. Certain conservative leaders, if they were not men, would be offering to bear further children for GWB tonight.”
They got screwed alright.
By Roberts? By Bush? By Obama? By themselves? Who knows?
Many of the conservatives who wrote love notes to the jurist in 2005 may be ready to pen “Dear John” letters in the wake of NFIB v. Sebelius. Certainly Mark Levin, who vouched that Roberts “follows the Constitution” and “is excellent” in 2005, has tacitly retracted his rose-colored assessment. He calls Thursday’s decision “lawless, absolutely lawless.”
To be fair, anyone who dares play Nostradamus ends up on occasion looking like Miss Cleo. But after landing on their asses so many times after Lucy had yanked the pigskin away, the Charlie Brown-conservatives should have figured it out by now.
Their uproar over George W. Bush’s horrid selection of Harriet Miers suggested maturation on this front. But the pending presidential nomination of the architect of Romneycare to oppose the architect of Obamacare suggests conservatives still don’t get that just because they carry the water for liberal Republicans they shouldn’t expect reciprocation.
Not every conservative threw caution to the political winds in 2005. Pat Buchanan called Roberts a “stealth” nominee. Charles Krauthammer dubbed him a “tabula rasa.” Ann Coulter wrote that nominations “shouldn’t be a game of Russian roulette.” Terry Eastland even invoked the name “David Souter.”
Why don’t Democrats ever experience David Souter-surprises on the Supreme Court?
Conservative Caucus founder Howard Phillips, whose “iceberg ahead” warnings over Souter conservatives foolishly disregarded in 1990, presciently told me of Roberts’s “pragmatism,” “inordinate respect for the present context and existing precedent,” and “desire to stay within what is perceived as the mainstream.”
Which of these traits is missing from Thursday’s opinion?
“There are two kinds of leaders,” Phillips told me in the wake of Bush’s nomination of Roberts. “One is a leader who is willing to go for the very best and is willing to get only 51 percent. There’s another kind of leader who makes preemptive concessions so that he can get 85 percent support. Bush is an 85 percenter. Those 51 percent battles are hard to win, but they’re worth winning.”
This is another way of saying conservatives should be willing to endure a bruising confirmation battle if they don’t want the Constitution getting bruised up for the next few decades. Short-term political damage to a president is preferable to long-term damage to the Constitution—and to the country.