Wednesday, July 20, 2005

John Roberts - should we worry yet?

When I read an Ann Coulter column and it contains some of the same things I wrote about a day earlier, (but with Ann using much stronger language), I resist the urge to pat myself on the back and I begin to worry. I wrote the following warning that we should be cautious about Roberts' Brief in which he argued against the Roe v. Wade decision:
Much is being made of Roberts' quotation in a 1991 brief where he wrote on behalf of the first Bush administration:

. . . we continue to believe that Roe v. Wade was wrongly decided and should be overruled. . .

But that statement doesn't prove anything. Roberts was working for the administration and he advocated the administration's position.

In 1966, future Justice Thurgood Marshall (as solicitor general) argued the government's position against Miranda. He lost and Miranda v. Arizona became the most well-known of the civil rights cases to come out of the Warren Court. I don't believe Marshall took any steps to limit that decision once he joined the Court.

Now, Ann has found a 1994 quote from Roberts that seems to distance himself from that and other Briefs.
Sue Bob is skeptical also.

While we won't get anywhere by opposing the nomination, we should recognize the strategic mistake, if one was made. There may be other appointments before Bush leaves office.

Ann made another point that I made yesterday and that Hugh Hewitt has often made prior to this nomination:
Conservatism is sweeping the nation, we have a fully functioning alternative media, weÂ’re ticked off and ready to avenge Robert Bork . . .

We have the means in place to win a difficult battle. Bush need not have been afraid of a fight. We did not have those means in 1987.

If we end up with another Souter, Kennedy or O'Connor (or Stevens, Blackmun, Powell, Brennan, Warren, etc. - all Republican appointments) we should recognize that the fault lies with the blogosphere in the first place. We had the means to influence the nomination prior to the nominee being selected. Instead, we waited and discussed various choices as if we were betting on a horse. We should have turned our blogs into megaphones for a few selected strict constructionist candidates. We should have advocated and discussed strict constructionism the way we are discussing it today.

Today's discussion should have occurred over the past two weeks. That kind of discussion would have shown the White House and the Senate that we have the power to win a battle if the Dems choose to recreate the Bork fight. That discussion would have convinced the White House that this is not 1987. The White House fears another Bork battle because uncreative generals always fight the previous war. Just as Civil War generals used pre-civil war tactics (with disastrous results), our political leaders don't recognize the new weapons and tactics that did not exist in 1987. We need to show them that those tactics work.

My suggestion is that we refrain from opposing Roberts, and that we engage in a discussion of strict constructionism. We should also continue to point out the dishonest tactics that the MSM/DNC has used in the past to derail qualified candidates. At least this way, we can lay the groundwork for the next nominee (if we are so lucky). Roberts will be confirmed anyway.

We should avoid one mistake that conservative pundits made yesterday. Don't advocate for Roberts on the basis that he was already confirmed unanimously for the appeals court in 2003. That is a good argument, but it will backfire if we ever have a nominee whose appellate confirmation was less than unanimous. That argument also teaches us nothing about legal and constitutional principles and the real reasons for confirming a nominee.

I remembered something else this morning. During the O'Connor confirmation process, Jesse Helms held a press conference and announced that he had spoken with Ronald Reagan and that Reagan had assured him that O'Connor's "position on abortion was no different than his [Reagan's] position and my [Helms] position." We all know how that worked out. [I don't have a link, I am going from memory.]

[Useless trivia - the last time we had a Supreme Court Justice named Roberts, things didn't turn out so well. If you don't know what I am talking about, figure it out before the next nominee is announced. I think you have at least one year to look it up.]

[Useless self-aggrandizing point - if Roberts goes bad, at least I can take consolation in not jumping in to support Clement yesterday. Actually, the whole Clement leak may have been a head fake to get conservatives to breath a sigh of relief at the Roberts nomination. We should find out who leaked Clement's name and resolve never to believe them again.]

I also believe that Hugh Hewitt has gambled his entire hard won credibility on this issue. If Roberts ultimately drifts (runs) to the left (like Republicans Souter, Kennedy, O'Connor, Stevens, Blackmun, Powell, Brennan, Warren), then Hewitt will have some 'splainin' to do. Hugh (if I may sound so familiar) is an excellent tactician and blogosphere theoretician. But I am not convinced that he understands all of the deeper philosophical points that make the new media necessary. (As evidenced by his recent confusion between Mecca and the Vatican).

On the other hand, if Roberts votes with Thomas and Scalia on the next abortion case, opposes affirmative action, votes to strike down Kelo, refuses to uphold gay marriage, etc., then I will thank Hugh Hewitt and buy another of his books to go with my treasured copy of "Blog."

Additional voices here.

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