25 / July
25 / July
Roberts Reservations

"President Bush's minions are telling their most conservative supporters that federal appeals court judge John Roberts is a slam-dunk certainty to extend government control of reproductive decisions into two major areas after he is confirmed as a Supreme Court justice," liberal Thomas Oliphant began his weekend column. "I suspect that in large part they are making it all up. The country's antichoice minority has a track record of gullibility extending back to the days of Ronald Reagan and George H.W. Bush. How else can one explain the anomaly that in every conservative government for the last generation, including the chance to nominate six justices, three conservative presidents have chosen to chip at reproductive choice's margins rather than take it on frontally. In the meantime, abortion rights have been exercised in this country without interruption."

Liberals laugh at the gullibility of conservatives. Conservatives imagine it's not there. Gullible people, after all, are often gullible in trusting the absence of their own gullibility. After Earl Warren, Harry Blackmun, John Paul Stevens, Anthony Kennedy, David Souter, and other disappointing Republican appointees to the Supreme Court, one would think that conservatives would have been, well, a bit more conservative in their response to the nomination of John Roberts. Conservatives were anything but ("Pop the champagne corks," "I'm ready to have the man's baby!"). Like Lucy pulling the football away from Charlie Brown, conservatives keep coming back as if they're going to kick that ball through the uprights. Save Ann Coulter's controversial reservations about the Roberts nomination, and my posts questioning if the confetti, baloon drops, and erupting champagne bottles were a bit premature, the enthusiasm for Roberts among conservative scribes seemed unanimous. But if you listen intently enough, you'll start to hear some grumbling.

Charles Krauthammer calls Roberts "a tabula rasa." "If he has a judicial philosophy," he writes, "we don't know it." The pro-choice but anti-Roe Krauthammer conjects that Roberts would likely uphold Roe v. Wade. Pat Buchanan notes "unease" on the Right about the "stealth" nominee. "For there is simply no record of his having ever, in 30 years in the law, rolled up his sleeves and plunged into any social or ideological brawl over issues like affirmative action or religious rights," Buchanan points out. "There was more risk in choosing Roberts than in picking some others...notably J. Michael Luttig, a federal appellate judge of roughly the same age but with many more years of service than Roberts," writes Terry Eastland, publisher of the Weekly Standard. "Luttig would have come with less risk simply because, tested for so much longer, his record is more emphatically that of someone who practices the approach to judging Bush says he wants in his Supreme Court nominees." Eastland even invokes the slight possibility of John Roberts becoming a second David Souter.

Perhaps you wouldn't bet on Roberts upholding Roe. And perhaps you would bet on Roberts to not be the next David Souter. But isn't the fact that serious writers are discussing these as serious possibilities bothersome enough?

posted at 09:53 AM

It is amazing how Un-American these conservatives and liberals are. Why is this nomination about one issue Roe v Wade? Does any other issue matter? How American is it to blindly want someone appointed if he agrees with you on only one social issue. How will the vast majority of Americans be affected by the Abortion laws one way or the other? The USA has bigger issues and more important ideas that need consideration

Posted by: RC on July 25, 2005 10:41 AM


Your comment shows a lack of understanding about the abortion issue. Since Roe v. Wade (1973) an estimated 46 million abortions have occurred. If you correctly consider abortion to be the murder of unborn children, that's 46 million homicides. On the scale of relevance and importance, nothing else in American life even comes close.

Concerning Roberts, I am afraid. Even if he's midway between Souter and Rehnquist, that's too far to the left by half.

Posted by: Ralph on July 25, 2005 10:56 AM

Ralph makes the most obvious, and totally correct, points. However, I would like to add that the usurping of powers from the States is a dimension of Roe that affects each and every person in the US. The Supreme Court and the Congress have no business legislating issues that should be the exclusive purview of the States. Where in the Constitution does it grant the power to regulate health care issues (or murder for that matter) to the Fed? If this ridiculous ruling is ever overturned, expect not to see abortion become illegal, but rather, expect to see the STATES decide their own fates and return governance of the country to the people. It is apparent, given the frustration and helplessness most people feel when they go to the ballot box, that the people cannot govern themselves through the huge bureaucracy that is the Federal Government. The people should govern where they are, in the States and exercise the freedom to shape their state and culture as they see fit, not in the graven utopian image that Washington conceives for the country.

Posted by: Homer J. Fong on July 25, 2005 11:06 AM

Like Krauthammer one can be a kind of American conservative and be opposed to most governmental regulation of abortion. But one cannot be an American conservative (that is have the desire to conserve the American Revolution and the Constitution that institutionalized its principles) and support the decision in Roe. That decision violates the Revolutionary and Constitutional ideals of separation of powers, division of powers (federalism), constraints on governmental elites through written constitutions, the sovereignty of the people of the states, and the foundational republican principle of majority rule. To support Roe is to demonstrate one does not value these ideals very highly, if at all. There can be no bigger issues than these for the Court.

Posted by: DocMcG on July 25, 2005 11:25 AM

"In the meantime, abortion rights have been exercised in this country without interruption."

I cringe when I see this kind of heartless euphemism. It has a celebratory tone to it that makes me wonder what kind of souless creature can glos over the deaths of 46 million unborn children.

Posted by: nobody important on July 25, 2005 11:26 AM

Anybody else find it hilarious that the WPost runs a front page story today about whether or not Roberts ever took part in a the Federalist Society activity?

Quoth the Post: " 'What matters is whether he hung out with them and not whether he signed the form or wrote the dues check,' said David Garrow, a law professor at Emory University. 'What's important is the intellectual immersion.' The questions about Roberts's involvement with the society may come down to the meaning of the word 'membership.' "

Old litmus test: approving of Roe.
New litmus test: no involvement with the rightist cult "the Federalist society."

Posted by: short on July 25, 2005 12:20 PM

From a constitutional perspective, for better or worse, the 14th Amendment is law. The Court should rule that abortion is unconstitutional according to the 14th Amendment.

From an ethical perspective, preventing abortion is a greater good than preserving an instance federalism.

Posted by: Ralph on July 25, 2005 12:28 PM

Are you now, or have you ever been a member of the Federalist Society?

Posted by: Charlie McCarthy on July 25, 2005 12:34 PM

Thomas Oliphant is probably right about how gullible we pro-life people are. How often is it that we hear Reagan praised as a pro-life leader? Rarely is this praise tempered by his court appointments or eliminated because, as governor, he legalized abortion in California.

Posted by: Jason Miller on July 25, 2005 01:55 PM

Ralph's interpretation of the 14th Amendment has two things going for it (besides the lives it would save in the short run): First, it is vastly superior to Blackmun's interpretation in Roe, and second, it would be so much fun to see liberal thought explode like an overloaded computer from a Star Trek episode when confronted with their "infallible" Court creating a right they hate.

On the other hand, liberal thought doesn't have enough logical integrity to explode. Instead the liberals would simply and without much embarassment change their tune about the Court (like they did in the early forties) and campaign against Court excesses (as Roosevelt had done in the thirties).

Posted by: DocMcG on July 25, 2005 02:11 PM

Big fan of the Fed Soc - Check this page on their site of speakers/presenters at Fed Soc events. One can only imagine that the list is written in order of importance as it begins with Ron Reagan and ends with Juan Williams.


(Okay, closer scrutiny foils that theory - Ralph Nader is ahead of Bill Buckley...)

Posted by: The Distributist on July 25, 2005 02:43 PM

why would John Roberts feebly claim he can't recall ever being a member of the Federalist Society? i understand the importance of keeping the process dignified and that a nominee has the right to remain silent on certain topics, but why would he pull a Bill Clinton and claim he cannot recall being a member of a society that deals with a subject for which he has devoted his entire life--the law? that's a pathetic evasion and in my opinion a blatant lie. i'm wary of this pick.


Posted by: PMA on July 25, 2005 05:16 PM

IMO, Homer J. Fong hits the nail on the head - particularly his point about the efficacy of the American people being able to "govern themselves" under our present leviathan federal government. American conservatives have marched in lockstep with the Republican Party for over 40 years now, they have helped "conservative" presidents get elected in the hopes of changing the Supreme Court. With Republicans in control off all branches of the federal government, it is time to recognize what a miserable failure this strategy has been - government is as big and as intrusive as ever, unbalanced budgets are the norm, and of course Roe is still on the books.

As Thomas DiLorenzo points out, devolution, not the fantasy of conservative/libertarian control of the federal government is the ultimate answer.

Posted by: James on July 26, 2005 07:33 AM
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