Wednesday, July 20, 2005

The Left's Influence on President Bush

No matter where I look, the comments I have seen regarding Judge Roberts have fallen into three categories. The first is personified by the charming and friendly Ann Coulter, whose ray-of-sunshine writing style allowed her to charmingly say that Judge Roberts, with his incredible credentials, is an unacceptable appointee. The second is brought out by the commentators whom I have more respect for, when they write that Judge Roberts seems to be a solid choice, with unimpeachable legal and scholarly credentials and a strong conservative background, while remaining far from the ideologue some feared President Bush would appoint. The third are the ridiculous statements being flung out by leftwing activist groups, stating that President Bush lost the chance to bring the country together with his nominee, and has picked a pro-business, ultra conservative nut job.

What I find interesting about these comments is that nearly everything I have seen or read can fall into one of those categories. No one is "in love" with Judge Roberts, not even the right wing base. The fact that President Bush did not pick an ultra conservative ideologue should be enough evidence that he did, in fact, think about what the left would want. I firmly believe that unless President Bush had appointed a nominee named specifically by Howard Dean, leftwing activist groups would have slammed his choice. After only two years on the bench, I find myself agreeing (for the first time) with Senator Schumer when he says that we need to learn more about Judge Roberts before making a decision. Indeed - let's all reserve judgment until we get a little bit more information on the man who is no doubt qualified for the post. What do some other people think? And I don't want to hear tape recorded responses from pundits and demagogues - I would like some honest criticism or commentary on Judge Roberts' decisions and career moves.


anon said...

Very legitimate and very objective post.

I still don't know much about Roberts, but I did read something today that appeared to be not mentioned by other commentators (since most people are focusing on the Roe aspect or business aspect...) so I hope you'll let it slide as a response (then again, it does have some "decisions and career moves"):

“Roberts participated in a July 15 decision by a panel from the Washington, D.C. Circuit Court of Appeals upholding the Bush administration’s claim that the president can designate any individual as an ‘enemy combatant’ and detain that individual indefinitely. The July 15 decision also assented to the administration’s claim that the president can create special military tribunals to conduct trials of enemy combatants, rendering decisions that are not subject to judicial review of any sort…

By assenting to that doctrine as part of the Appeals Court panel, John Roberts has endorsed executive despotism as a ‘wartime’ necessity – in a war that may last for a generation or more. His nomination thus represents George W. Bush’s effort at building what Rick Montgomery of the Kansas City Star calls ‘a wartime Supreme Court.’ Conservative legal activist Jay Sekulow of the American Center for Law and Justice (an organization created by Christian Right activists to confront the ACLU) points out that judicial deference to presidential power is ‘the hidden issue and, I think, a huge one….’ The question of executive powers is part and parcel of any decision regarding the legal issues most critical to this administration.

Attorney General Gonzalez, who helped devise the administration’s sweeping claims of presidential power, is a longtime Bush confidant and was an early favorite for a Supreme Court nomination. His views on abortion and other social issues made him unsuitable to many Christian Right activists, who voiced their displeasure at the prospect of Bush nominating him for the High Court. Confronted with that criticism, Mr. Bush sternly rebuked the Christian Right, defending Gonzalez and warning his critics to modulate their rhetoric. The fact that Roberts, not Gonzalez, was chosen as nominee will probably be seen by Christian Right leaders as a conciliatory gesture.

However, it’s more likely that Gonzalez was passed over because of potential conflict-of-interest issues arising from challenges to the legal doctrines he helped create as White House Legal Counsel during the administration’s first term. Were Gonzalez successfully appointed to the High Court, he most likely would have been required to recuse himself when those challenges reached the Court. This would have jeopardized an outcome favorable to the administration’s view of executive power.

For those who support the Bush administration’s quasi-dictatorial view of ‘wartime’ presidential powers, the best Supreme Court nominee would have been Alberto Gonzalez sans the potential conflict of interest. John G. Roberts, Jr., appears to be that man.”

— William Norman Grigg

marco said...

There is no doubt the guy is really smart and capable, but so far he has only used his abilities to implement the wishes of others - first in the DOJ then as a appellate court litigator. He has never had to stake out his own legal philosophy and support it. We really have no idea what kind of legal philosophy he is going to implement. No doubt he is of a conservative bent. But that could mean a lot of things, just look at the spread of philosophical stances the current conservatives justices hold. It will be interesting to see how his develops.

Adam Scavone said...

He does have a record. The case referred to by Grigg above is the Hamdan case, and while it should give each and every one of us pause, it sounds to me like he had a firm grip on the legal matters involved in the case, though an article at Slate (via H&R) does raise some valid concerns (namely, that though the case involved a foreigner fighting on a foreign battlefield, the ruling gave enough room to the Executive branch to capture and detain Americans on American soil). Roberts agreed to but did not author the opinion, and, as I mentioned before, the Constitution does (for better or worse) allow for suspension of habeas corpus in times of "Rebellion or Invasion."

Also, he does have some record that we can look at to infer his judicial temperment. I like to hear what the legal scholars have to say on his track record, but his dissent in Rancho Viejo, LLC v. Gale Norton seems to indicate an understanding on the Judge's part that the interstate commerce clause is not a blank check to the feds.

One of the more amusing things I read yesterday was a hysterical People for the American Way gripe about Roberts' decision in the "french fry" case, in which he argued that the actions of the Metro police in DC in arresting a twelve year old girl for eating a french fry in a Metro station were legal, if ill advised. I can't find the PFAW statement - seems to have vanished and their search thing isn't working - but they were hysterical about how he was "dismissive" of the "serious" consequences of this event because he wrote that,

No one is very happy about the events that led to this litigation. A 12-year-old girl was arrested, searched and handcuffed. Her shoelaces were removed, and she was transported in the windowless rear compartment of a police vehicle to a juvenile processing center, where she was booked, fingerprinted and detained until released to her mother some three hours later — all for eating a single French fry in a Metrorail station.

The child was frightened, embarrassed and crying throughout the ordeal. The district court described the policies that led to her arrest as "foolish," and indeed the policies were changed after those responsible endured the sort of publicity reserved for adults who make young girls cry.

He seems to have a head on his shoulders, and Schumer and Co., who vowed to "go to war" over whoever is nominated are going to have to do much better.

My distaste for the behavior, the antics, of Schumer & Co. give me plenty of preliminary reason to support Roberts and hope that Bush steamrolls the moonbats (on all sides - libertarian, left wing, and far right, like Ann Coulter as Ben notes) with this nomination.

Adam Scavone said...

Also, for anybody (like me) who doesn't understand the questions that can and can't be asked in the grilling of the nominee, I found this Federalist Society case study (pdf) of the Ginsburg nomination, that includes statements from Senator Joe Biden (D-DE), who notes that nominees didn't regularly report to the Senate as part of the confirmation process until 1955, and that the first nominee to personally respond to the inquiry of a Senator did so in 1925.

Dennis said...

Nice post, Ben. I agree 100%, and that almost never happens... anywhere. Wow.