Holding Fire on Roberts
In yesterday's piece "Supreme Limitations on Democrats", I argued that liberals and progressives of all stripes should not reflexively oppose the nomination of Judge John Roberts to replace Sandra Day O'Connor. (Admittedly, when I wrote the piece, it was Judge Edith Brown Clement I had in mind.)
The argument for restraint in the confirmation process is straight-forward. It's not just that Roberts is clearly a first-rate legal talent, unlike a Clarence Thomas. He simply does not cross the threshhold of prima facie unsuitability. Massive coordinated efforts by Democrats and the panoply of liberal interest groups will not only fail to block his nomination, but will be damaging and counterproductive in the court of public opinion.
There are, to be sure, some obvious points of concern with Roberts, such as the 1990 brief for calling for the over-turning of Roe v Wade and his ruling on military tribunals in Hamdan v Rumsfeld. But with the limited history of Judge Roberts, he does not seem to a priori violate any of Perrspectives' three tests for immediate rejection by progressives:
- Roe opposition alone is not enough. Just how personally opposed Roberts is to reproductive rights protected by Roe remains to be seen. But as virtually any Bush nominee will be anti-choice, that is simply not enough for a no vote.
- Partisan politics should be a non-starter. Roberts was a member of the Reagan and Bush administrations, but AmericaBlog and MyDD notwithstanding, does not fall into the category of lifelong partisan operative, as would former Solicitor General Ted Olsen.
- A track record of judicial or philosophical extremism should also be a non-starter. But Roberts' limited writings, public statements and appellate decisions are not fertile grounds for opposition out of hand.
Fortunately for Democrats, voices like Senate Minority Harry Reid and the Center for American Progress are urging patience and restraint. While the Center stated, "it is too early to form a definitive judgment on how he would approach his responsibilities if confirmed," and Reid simply urged Americans to let the confirmation process play out:
"The President has chosen someone with suitable legal credentials, but that is not the end of our inquiry...I will not pre-judge this nomination. I look forward to learning more about Judge Roberts."
With this nominee almost certain to win confirmation and the likely prospect of worse on the way from George Bush, progressive groups would do well to hold their fire.