Tuesday, July 19, 2005

Judge John Roberts: awfully stealthy

Well, it would appear my prediction that it would be a woman was -- most likely --incorrect. However, politics is full of surprises, and one must not be hasty.

The Clement boomlet deflated quickly; I stand by my comments below: I suspect someone floated that, to try to tip the President's decision--why not? Someone like Specter would be a likely suspect.

Another explanation would be that someone in the White House was deliberately fed this, to see if he'd leak it, which he did.

(I'm assuming the Clement thing came from someone supposedly "in the know"--because the Washington Press corps generally wouldn't give so much credence to this unless the source was really credible. Of course, it could just be a quirk. I suspect you'll see stories about how the Clement rumor got started, if you watch for them.)

Why not a woman? Two guesses, and that's all they are: he may want to pick a woman to succeed Rehnquist; or he may have found, that among the women, his choices were someone too controversial (i.e., Jones or Brown), and someone too milquetoast (i.e., Clement). Roberts -- as he is being presented -- is inbetween.

Should prolifers celebrate?

Not so fast. Consider this AP headline at Fox News:

Roberts Could Go Both Ways on Roe

Roberts is being cited as describing Roe as wrongly decided -- but that's the brief he wrote for the previous Bush Administration: no reason to assume that reflects his own beliefs.

But here's what he did say, concerning his own views, before the Senate: "Roe v. Wade is the settled law of the land. ... There's nothing in my personal views that would prevent me from fully and faithfully applying that precedent."

That one word -- "settled" -- that's the bugbear.

What does it matter? Answer: because it means, in legal-speak, that the case in question either shouldn't be overturned, or is so sacrosanct because of time, that the bar is set awfully high. That's why pro-aborts press the nominee to say it: it boxes them in. Don't tell me it's meaningless.

Either he said it to get the pro-aborts off his back; which makes him somewhat insincere, and that's a bad sign; or, he believes it; and that's an even worse sign.

Make no mistake: all the pressure will be not to take on Roe; remember Justice Anthony Kennedy. We now know, from the memoirs of Roe author, the late Justice Blackmun (may God have mercy on his soul), that Kennedy actually cast his vote -- intitially -- to overturn Roe in 1992, Casey v. Planned Parenthood. He was the fifth vote. Then, inexplicably, he changed his vote, and there it stands to this day.

Now, in the days to come, you will hear all sorts say, "don't worry about that 'settled' comment. He was just playing the game." Consider from whom you hear it.

From the White House? Discount that. From Senate Republicans? Discount that. What do you expect them to say? Of course the White House will only promote and defend the nominee; and what Republican Senator -- absent a smoking gun -- and I mean, in his hands, with a dead body at his feet -- will whisper a word against Roberts?

I'm not saying Roberts is a bad guy. I'm saying, don't be too impressed by the endorsements he racks up pretty quickly.

I have to say: it's troubling not to know more. We've had our fill of "stealth" candidates. We may not like boxing in the President so much, but given the record of GOP nominees to the Supreme Court (remember, GOP appointees not only upheld Roe in 1992, they gave us Roe in the first place!), we don't have much choice. If Republican picks like Roberts -- safe and stealthy -- haven't almost always turned out badly, we could afford to "trust."

Put it another way: when has a stealthy nominee like Roberts turned out good for prolifers?

1 comment:

Anonymous said...


I think Roberts' "settled law" comments also can be explained by circumstance and the role he was in. He was picked for a spot on an inferior court. And for such a panel, in a common-law precedent-based system, Roe just IS settled law (very bad and unjust law, but nevertheless "settled" as far as an inferior court is concerned).

But all laws are settled ... until they're unsettled. And the Supreme Court has the power to unsettle its own law and reverse its decisions, as Lawrence (the Texas sodomy case) "unsettled" the Bowers decision from the mid-80s. In other words, for a Supreme Court justice, there really is no such thing as "settled law," and thus comments therein have no binding power and probably little predictive value for a Supreme Court nominee.

After all, keep in mind that Clarence Thomas got on the court despite saying he had never even discussed Roe v. Wade (and monkeys might fly, but whatever ...), i.e., the ultimate blank slate. He turned out pretty good.

I just think Thomas and Roberts are doing what any smart post-Bork legal scholar or judge or potential high-court judge would do -- play coy with those who, by their corruption of law, moral perfidy and demonstrated willingness to lie -- do not deserve straight answers.