Judicial Chaos By Design
Vol: 46 Issue: 22 Friday, July 22, 2005
The opposition to Judge John Roberts’ Supreme Court is already looking for ways to obfuscate the Senate confirmation hearings, even as they admit that Roberts will probably eventually be confirmed.
That’s interesting on two levels; the first is the tacit admission that opposition to Roberts’ nomination is automatic. The Democrats have already promised to fight whoever is nominated, regardless of whether or not they have a reason to oppose him.
The various Democratic organizations in charge of such things, like Moveon.org, already had their teams assembled, funding in place, and rules of engagement defined before Roberts was even nominated.
The fact that neither they (nor anybody else) knows whether Roberts would make a good justice or not is evidently irrelevant, since the object of the exercise is to impede the Bush administration wherever possible.
A Supreme Court appointment is just about the most important thing a president gets to do; such appointments are for life and the judicial philosophy a justice brings to the Court can shape the course of American juriprudence for decades to come.
Secondly, they plan to go ahead and mount their assault — even though they expect him to be confirmed anyway!
Why do I think it is so interesting? Because, as important as a Supreme Court justice is, they really don’t care if Roberts would be a good one and they aren’t even pretending that they do. They are opposing him on spec. Because Roberts was nominated by George Bush.
Let me say up front that I don’t know much about Roberts myself. I don’t know if he is necessarily the best candidate out there, or whether Bush selected him as the candidate least likely to offend the opposition on the left.
The Democrats have promised (with their fingers crossed) not to tie up the Roberts nomination with endless procedural delays, and promised to give Roberts nomination a fair hearing.
But there is something about watching them build the gallows before the trial has even started that makes me glad I’m not John Roberts.
(“Don’t worry. First we’ll try you, all nice and legal-like. THEN we’ll hang you.”)
The anti-Anybody Bush Appoints committee, led by Charles Schumer, a Democrat from New York, has already demanded the Bush hand over internal legal memorandums from the period when he served as a US deputy solicitor general.
The solicitor general is the government’s lawyer; his client is the United States. Every administration has claimed the same lawyer-client privilege as any citizen.
It is not some ‘executive privilege’ claim, some of which are legitimate, but most often is invoked to avoid some political embarrassment. This is different.
The solicitor general and the United States have a lawyer-client privilege. Roberts was the government’s lawyer. He can’t reveal details of his work for the government. And Roberts served as the government’s lawyer from 1989 to 1993, encompassing both the Bush and Clinton administrations. Not even the United States Senate can compel a lawyer to break lawyer-client privilege.
Schumer knows this. That is why he’s demanding it – because he knows the administration won’t — can’t comply. It is the 21st century equivalent to ‘borking’ — it’s even got a name. “Estradafication.”
It is how the Democrats blocked an earlier Bush nominee to a lower court. They demanded legally privileged documents from Miguel Estrada, and when the administration refused, they blocked his nomination by filibuster.
Noted Senator John Cornyn of Texas, “This tactic was first fielded against Miguel Estrada, recently perfected with the nomination of John Bolton, and now some are fully primed to Estradify this fine nominee.”
I don’t know if John Roberts is a ‘fine nominee’ or not. I do know that present Supreme Court is one of the most liberal activist courts in US history — and seven of the nine current justices were Republican appointees.
(Being a Republican appointee is evidently no guarantee one will automatically be a conservative justice, despite the spin being put out by the left.)
A tally taken by The Washington Times of 100 senators earlier this week found 44 in support of Judge Roberts and another 15 — including several Democrats — undecided but who have made positive comments.
So, it appears that Roberts already has enough votes to be confirmed, and barring some major shakeup, Roberts even has enough votes to overcome a filibuster.
So why the fight? When Bill Clinton nominated Ruth Bader Ginsberg — an unabashed liberal and former ACLU lawyer, there were enough Democrats to guarantee her confirmation, just as there are enough votes now to confirm Roberts.
Knowing that Ginsberg’s nomination would pass anyway, the Republicans put away their machetes and Ginsberg salied through the nomination process.
Ginsburg went from nomination to confirmation in less than seven weeks with little Republican opposition despite the fact she flatly refused to give her opinions on hot-button issues like abortion, gun control and gay rights.
Clinton made two appointments to the Supreme Court, both openly and unabashedly liberals; Ruth Bader Ginsberg and Stephen Breyer. Ginsberg was approved 96-3 and Breyer 87-9.
So why gear up for a big fight over Roberts? So far, the Democrats haven’t been able to come up with any real reason to reject Roberts — indeed, there are more conservatives with reservations about him than there are liberals.
Their purpose is not to select the ‘right’ Supreme Court justice, it is to foul up the process and embarrass the administration as much as possible.
That is why they are demanding privileged documents they know they won’t get. To hold things up, to block the progress of government, and to make life as difficult as possible for George Bush.
The fact that it makes things difficult for the rest of the country is irrelevant, except to the degree that they hope a frustrated public will give in to what is the equivalent to political extortion and return them to power.
In effect, they are telling the rest of the country that the only way to prevent the Democrats from blocking effective government is to let them be in charge.
It isn’t that they expect to prove they can do a better job of governing, but rather that they can do a better job of stonewaling government than the Republicans can.
I’ve even heard some of the dimmer bulbs in the Democratic spin machine argue that Justice Sandra Day O’Conner’s seat was some kind of official ‘moderate’ or ‘swing’ seat and therefore, it should be filled by someone with a similar judicial philosophy in order to keep the court ‘balanced.’
Supreme Court slots aren’t designed or designated as conservative, liberal or moderate. And the argument itself is laughable. The present court is both out of balance and out of control.
None of this matters. None of this is being seriously considered by Roberts’ opponents. The only thing that matters is hurting the Bush administration — as if it were some alien administration of a hostile foreign government.
But the Bush administration is more than a guy from Texas that they don’t like. It is the government of the United States of America, and will be, until January 20th, 2009.
Unless they can find a way to bring it down earlier — and the rest of us with it.