The Roberts Trap

John Roberts has now been confirmed as chief justice of the Supreme Court, replacing the legal giant William Rehnquist. But it still remains to be seen whether John Roberts is really the best man to fill those legendary Constitutional shoes.

Despite the partisan results of the Senate confirmation vote—every Republican senator voted for Roberts, while the Democrats split down the middle, 23-22—there is significant disagreement about what this will mean in the long run.
The dissenting Dems included some of the most liberal members of Congress: Kennedy, Kerry, Feinstein, Boxer, Obama and, of course, Hillary Clinton. Thus the “good” conservatives appear to have won and the “bad” liberals have lost.

But that current public perception may prove to be just smoke and mirrors in the future. Some of the conservative senators who voted for Roberts did so despite reservations, believing that the president’s next nominee would be a clear conservative.  Even before the vote, some astute legal observers were predicting that Roberts’ replacement of Rehnquist would actually result in a more liberal slant for the Court.  In his Washington Times article of September 20, Bruce Fein, a constitutional lawyer who once worked with Roberts at the Justice Department, offered an in-depth analysis of the fundamental differences between Roberts and Rehnquist.

“Compared with the late Chief Justice Rehnquist, [Roberts] is more accommodating to First Amendment rights of free speech and association, Fourth Amendment privacy interests, and the power of Congress to encroach on traditional state prerogatives under the Commerce Clause. Judge Roberts also is less inclined to disturb liberal Supreme Court precedents,” Fein observed.

“In sum, President Bush’s shifting of Judge Roberts from the liberal seat of Justice Sandra Day O’Connor to Rehnquist’s conservative chair marked a nontrivial ideological victory for Democrats and a doctrinal setback for Republicans.”

Just when conservatives were set to do a victory dance in the end zone, in came another penalty flag threatening to push their progress back another 15 yards.

Some serious conservatives questioned Roberts’ appointment beginning back in July, including columnist Ann Coulter. “We don’t know much about John Roberts,” Coulter opined. “Stealth nominees have never turned out to be a pleasant surprise for conservatives. Not ever.”

While Focus on the Family, the Christian Coalition, and the American Center for Law and Justice were all fawning over Roberts and praising President Bush for appointing him, longtime conservative icon Howard Phillips defied the crowd and blasted Roberts for doing pro bono work for homosexual activists in the landmark 1993 Romer v. Evans case in Colorado.

“Judge Roberts apparently had no moral objection to using his skills to advance the homosexual agenda,” Phillips noted. “It suggests an absence of understanding by Mr. Roberts that homosexual conduct is sinful and ought to be discouraged.

“We do not need another Anthony Kennedy, Sandra Day O’Connor, or David Souter,” concluded Phillips. To which I say: AMEN.

The fact is that we knew little about John Roberts’ judicial temperament when he was nominated.  Much of what we did learn during his hearings was of no consolation.  Particularly disturbing was his assertion that as a judge, he will not be guided by the moral precepts of his Roman Catholic faith. “My faith and my religious beliefs do not play a role,” he testified to the Senate Judiciary Committee.

He also affirmed his affection for precedents, such as the Roe v. Wade ruling that made abortion-on-demand the law of the land. He agrees with those constitutional “penumbras” that are at the heart of the Griswold v. Connecticut case, which made Roe possible.

Now enter Bush’s nomination of White House counsel Harriet Miers to succeed Sandra Day O’Connor and the “Roberts trap” has been sprung.

Miers is a clean slate with no paper trail and no discernable judicial philosophy because she has never been a judge.  This nomination presents far more missing pieces of the puzzle compared to the Roberts nomination. 

But the trap for conservative leaders who were busy patting themselves on the back for Roberts’ confirmation was to save face on an even more questionable nominee.  They had supported Roberts on faith.  They threw their support behind Roberts even though details were sketchy at best.  Now, in the name of consistency and a united front, they have little choice but to endorse a candidate that they know far less about for a more key position.

Such are the quagmires created by conservatives when they are too easily appeased.  Why should we support any nominee whose positions on vital moral issues are too vague?

Grassroots conservatives realized the ruse immediately and were quick to express their outrage over the latest “stealth” nominee on talk radio and the hottest blog spots.  Almost as immediately, the White House went into damage-control mode, assuring conservatives they had nothing to fear because Miers is not a “stealth” candidate to the president—after all, he knows her.  The president even held a hastily prepared press conference in the Rose Garden to assuage conservative angst.

After almost 60 minutes of questions and answers, if conservatives cut through the spin and posturing, they are left to ponder this still unanswered question:  Exactly how is Miers—or even Roberts—in the mold of Scalia or Thomas?  After all, the president’s campaign promise to conservatives was to select judges who were just like Justices Thomas and Scalia.

In his own words, the president offered, “I picked the best person I could find.”  With all due respect Mr. President, where were you looking?  I don’t have the considerable resources that the White House had in this search, but off the top of my head come the names of Edith Hollan Jones from the U.S. Court of Appeals, 5th Circuit, and Janice Rogers Brown from the U.S. Court of Appeals, D.C. Circuit.  Jones, who has been on the court since 1985, could easily establish her conservative credentials.  Brown, who recently proved she can handle the Senate confirmation process, has been a judge since 1994 and her life story embodies the conservative mindset for success.  That may not make her a “trailblazer” to some, but her judicial record clearly trumps that of Ms. Miers.

The president seemed to bristle at the assertion that Miers is a stealth candidate or that her appointment was due to her close relationship with him, but when pressed for reasons why she should be supported, he offered only variations of this idea:  She helped picked Roberts, she knows what he’s looking for in a judge, and because he knows her, he can assure us that she is the kind of judge he’s looking for.

That seems less like an assurance and more like circular logic that no one benefits from.  Grassroots conservatives deserve far better from this president.