All Geared Up to Fight and Nothing to Argue Over

Before Supreme Court Justice Sandra Day O’Connor announced her retirement, both sides were gearing up for a battle royale over the next justice, only to discover there isn’t much to fight about in President Bush’s nomination of Judge John Roberts to the nation’s highest court.

Well-known Democratic lawyer E. Barrett Prettyman Jr., who worked closely with Roberts in private practice, says Roberts is both judicious and predictable.

"He respects the court greatly and would not ignore precedent," Prettyman observed.

So much for the image of a radical ideologue who would upset settled law at the first opportunity.

Those who want to fight, no matter the lack of provocation, are looking hard for a reason to mobilize their political machines.  The most the left can find to complain about is that Roberts was "insensitive" to frogs when he concluded the federal government lacked the power under the Commerce Clause to stop a real-estate developer from displacing a certain variety of frog listed as an endangered species because the "hapless toad (that), for reasons of its own, lives its entire life in California" and apparently doesn’t itself engage in interstate commerce.

That observation might not foreshadow a Justice Roberts willing to overturn, say, United States  v. Darby (1941), which overturned 50 years of jurisprudence narrowly construing the Commerce Clause to keep congressional regulation confined within the enumerated powers. Nevertheless, Roberts’ understanding of the Commerce Clause does cause this observer to be somewhat optimistic that he may continue in the shoes of O’Connor and help direct the court back toward a more sensible reading of a critical constitutional clause that is closer to its original understanding and protects private property rights.

It is also vital that the new justice follow in, and hopefully expand,  O’Connor’s  defense of private property rights in light of the court’s recent ruling in Kelo v. New London (2005) that local governments may seize people’s homes and businesses for private economic development.  In her last major dissenting opinion in Kelo, O’Connor worried that, "The specter of condemnation hangs over all property.  Nothing is to prevent the state from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall or any farm with a factory."  It is the poor who are most vulnerable to having government condemn their homes as "blighted" and replace them with commercial projects that increase the tax base.

Some civil liberties advocates try to portray Roberts as some kind of judicial child abuser because he refused to overturn the arrest of a 12-year-old girl in a Washington, D.C., Metrorail station when she ate a French fry in violation of the law.  Roberts indicated in his decision he wasn’t happy about the situation; however, the issue wasn’t whether the law was a good one but rather whether it violated the girl’s constitutional rights; it did not.  That is judicial restraint.

Some people on the right, notably conservative pundit Ann Coulter, say Roberts is a "blank slate," and the only thing he’s got going for him is the he has argued cases before the Supreme Court. Coulter’s complaint is that the time for payback for Robert Bork has finally arrived, and the president has nominated someone who doesn’t entice liberals to throw a fit.

I don’t know how to plumb the depths of the court decisions Roberts participated in to prognosticate how he might rule in the future.  But everything I’ve seen and heard of this jurist – former Rehnquist law clerk, deputy solicitor general, well-respected lawyer at the Washington law firm Hogan & Hartson, and in the evaluation of most lawyers one of the most articulate and persuasive oral advocates to argue before the Supreme Court for many a year – makes me feel confident about him.

Roberts’ nomination to the Circuit Court of Appeals in 2003 was reported favorably to the Senate floor by the Judiciary Committee by a vote of 16 to 3.  He was confirmed by the full Senate without significant Democrat opposition.

The bottom line is that Roberts is a highly qualified conservative jurist who can be confirmed to the Supreme Court in the current political environment. Sen. Hillary Clinton has announced that she, too, will support the Roberts nomination, which means there is no fight to fight. Let’s get Roberts confirmed and move on.