Thursday, July 28, 2005

Bush's (not so) Disappointing Nominee

Washington was in a fervor in the first weeks of July with rumors spreading of a looming vacancy in the Supreme Court. Thus, when Sandra Day O'Connor retired, the pundits and politicians all were ready for her replacement. Ann Coulter, in fact, almost immediately penned a column attacking O’Connor’s many decisions during her career as a Supreme Court Justice. In it, she responds to Chuck Schumer's request for a justice similar to O'Connor in judicial philosophy. Coulter suggests that the ideal nominee is one who is "violently opposed by Chuck Schumer." She went on to predict a large shift to the right with Bush's next nominee. Well, the replacement has been named, John G. Roberts, Jr., and Ann Coulter couldn't be more displeased. This intrigues me, because I believe that the perfect nominee is one who is violently opposed by Ann Coulter.

It has always been my belief that to understand the truth behind any amendment, law, or appointment, the most honest criticism will come from the detractors in the party, ideology, etc. from where it originates. Now, bowing to the pressure of special interest groups and the DLC (Democratic Leadership Council), the congressional Democrats will surely make noise over Roberts. Liberal papers will smear his career, trying (unsuccessfully) to Bork him. However, the conservative side of the government has fallen strangely silent in praise and, aside from the administration's constant assurances that he is a worthy candidate, there is little support other than praise for his intelligence or clean record. There is a sense of discontentment in the right wing of politics, demonstrated more by the perpetual silence than any vocal protest. The one exception is, of course, Coulter, who likens the situation to George H.W. Bush's appointment of David Souter.

Coulter brings up a valid point: Roberts has lasted his entire career without saying a single controversial word. He has neglected to mention his personal philosophy in any of his writings, making a vocal point that any opinions he authored or co-authored did not necessarily represent his own views. He added a footnote on a 1994 law review which reinforced that his time spent representing the United States (during Bush Sr.'s presidency) as a Deputy Solicitor General was in no way a showcase of his own beliefs. The fact that he tried so often to drive this home was warning enough to many conservatives who were hoping for a nominee who would perhaps legislate from the bench, though in favor of conservative, rather than liberal, philosophy. Coulter mostly took offense to Bush’s choice of a "risky" nominee, even though his party was securely in power and the opposition had failed to capitalize after the arguably disastrous beginning to his second term. Roberts is not risky because he chances a filibuster from Democrats; Roberts is a "blank slate," untouchable by a litmus test and an enigma to the ideological scrutiny both sides will attempt. He is a man that Geoffrey Stone of The Huffington Post referred to as “Bush’s blink.” Though he may share the very conservative philosophy of Antonin Scalia and Clarence Thomas, he also demonstrates an extreme reluctance to apply any personal belief in his rulings.

Roberts’s credentials are undeniable: his intelligence and knowledge of government, consistency in the application of law, judicial restraint, and professional demeanor are all top-shelf. For over 20 years, Roberts has exemplified an honest politician, one who ignores partisan hackery while owing judicial obedience to the documents that govern his country. Terry Eastland of The Weekly Standard notes that one case in particular, a decision that had many liberals and human rights activists shouting in anger, is a characteristic example of his judicial restraint. In the case, a 12 year old girl was thrown to the ground, handcuffed, searched, and jailed for eating french fries in a metrorail station that had banned food. Roberts takes a logical stance, saying that it matters "not whether these policies were a bad idea but whether they violated" the girl’s constitutional rights. Speaking for a unanimous panel, he sides with the police, citing that, although the Fourth Amendment protects against unlawful searches and seizures, the girl did break a law, thus subjecting herself to all consequences including jail-time and a search of her nearby posessions. Maggie Gallagher also presents a “close-up look” at his judicial reason in a case where he dissented from two other judges, again on Fourth Amendment interpretation. In this case, a man was pulled over in a car with stolen license plates and was unable to produce a driver’s license or proof of ownership of the car. After arresting the man for driving an unregistered car with a suspended license and stolen tags, one of the officers proceeded to search for the real tags in the car (based on his experience with stolen tags in the past). What he found instead was a .25-caliber pistol and ammunition in the trunk. After being convicted for a weapons violation, the man appealed on the grounds that the vehicle was unreasonably searched, that his Fourth Amendment rights to the vehicle had been violated. Roberts opined to uphold the sentence, saying that because the officers had probable cause, they did not need a warrant to investigate further and search for evidence. It’s difficult not to agree with Gallagher (and Roberts, of course): a man with three legal reasons not to be behind the wheel of a car he is caught driving should not have protection against a search of that vehicle, as it is the duty of an officer to investigate a crime at the scene.

At his initial confirmation hearing, Roberts was asked by Schumer to explain why he would not reveal his personal opinions on past rulings. Roberts replied that to judge a case before sitting on the bench would undermine both his credibility and the strategy of the litigants who bring the case in future sessions. To do so would cause a bias in the arguments, causing those presenting a case to either attack a justice's personal opinions or attempt to play off them. Further inquiries have revealed his steadfastness and dedication to the ideals he has pushed for over 20 years. He refuses to bargain for votes, again demonstrated by his refusal to reveal any of his beliefs or even a single thought on an upcoming case. The only real admission in the past decade has been his view that Roe vs. Wade is time-tested as "law of the land," and that it would take significant evidence to make him overturn the landmark decision. His allegiance to well-established precedence demonstrates that he will not resort to conservative activism, an inclination to disregard or overturn precedent due to personal belief or political pressure.

It is the belief of this particular writer that Roberts is the perfect candidate for the Supreme Court, a man who refuses to bow even the slightest to the partisan hackery that both sides wish to foist upon him. He appears solidly moderate, as in he is motivated by neither the left nor right agendas, with a clearer vision of the Supreme Court's purpose than O'Connor and an utterly unsympathetic ear for the conservatives who wish to control him. The question is not about his beliefs, for it is almost certain that his beliefs are solidly conservative. The only necessary question has already been answered: whether or not he will be a fair and restrained justice. I hope he receives a clean and smooth appointment, and that the Democrats and Republicans save their energies for other issues that are actually controversial.
---Souter In Roberts' Clothing by Ann Coulter
---Reading Roberts's Mind by Terry Eastland
---The Volokh Conspiracy (various contributors)
---JUDGING JUDGE ROBERTS by Maggie Gallagher
---John Roberts: Bush's Blink by Geoffrey R. Stone

(final draft)


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