Monday, July 16, 2007

You mean John Roberts is really conservative?

In September 2005, the "liberal" editorial page of the Washington Post offered an unqualified endorsement of John Roberts to be chief justice of the United States Supreme Court. Roberts personified then and now the Washington establishment figure so beloved by the Post. "He is overwhelmingly well-qualified, possesses an unusually keen legal mind and practices a collegiality of the type an effective chief justice must have," fawned the Post. "He shows every sign of commitment to restraint and impartiality. Nominees of comparable quality have, after rigorous hearings, been confirmed nearly unanimously."

And, then, in true Post fashion, it called for Roberts's confirmation "by large bi-partisan vote." Yes, indeed . . . the solution to all life's problems, or at least those that confront our politics, is just a bi-partisan vote in Congress away. In extreme emergencies, naturally, it is necessary to form a bi-partisan commission headed by Bob Dole and Donna Shalala to offer a "sensible" recommendation for whatever problem faces the Republic. If you've been paying attention lately, you'll notice that Dole and Shalala appear to be getting pushed out in favor of Leon Panetta and Sandra Day O'Connor. Oooh . . . wee! Some juicy gossip for The Reliable Source writers just waiting to be dished!

In the Post's editorial world, no one is ever really right or wrong, unless, that is, they occupy the "extremes" of the "Left and Right." Conservative extremists, as the Post sees it, are unrepentant Klansmen, public officials unfamiliar with the 1972 American Medical Association's rejection of homosexuality as a "disease," pre-1964 opponents of the civil rights movement and militarists who support invading foreign countries before obtaining a bi-partisan resolution in Congress. Liberal extremists include anyone who questions "free-trade," opposes military action even after the necessary bi-partisan resolution has been secured, believes Roe v. Wade is defensible as a constitutional matter, takes issue with "people of faith" getting their hands too dirty in politics and doesn't believe that Henry Kissinger holds the answer to our foreign policy dilemmas. Opinions are just starting points for the inevitable compromise "towards the center." No one wearing a blue suit and a red tie or a red two-piece skirt and jacket and big gold buttons with American flag lapel pin should be ignored, unless, of course, they are an "extremist."

And above all, respect "the process." For the Post, "the process," whatever it is, reigns supreme over the political universe.

The Post confessed that Roberts probably wouldn't rule as it would like on . . . let's see . . . presidential power, the restriction of civil liberties in times of crisis, civil rights laws, the power of Congress to regulate the environment, the economy and promote social policy through the New Deal exercise of police power. And the right to privacy? Not so good there either. But what the hell? He's smart, nice . . . and those adorable children nipping at his heels during President Bush's introduction of him to the public as Chief Justice William Rehnquist's replacement? Who could say no? "Judge Roberts," drooled the Post, "represents the best nominee liberals can reasonably expect from a conservative president who promised to appoint judges who shared his philosophy."

Compared to Janice Roberts Brown, Michael Luttig, the rejected Robert Bork and the now-deceased James McReynolds, I guess that's true.

So imagine the tears shed in the Post editorial conference room when its board two weeks ago admitted that the 2006 Term has been "disappointing," a word it used six times to describe the Court's rulings on school desegregation, abortion rights, executive power, free speech, anti-trust regulation and campaign finance reform. The Post also frowned upon the Court's fractured state (yep, those twenty-four 5-4 decisions suggest that something less than John Marshall-like consensus exists on the Court), and lamented its aggressive treatment of prior decisions that weren't begging for hollowing out or overruling. Remember when Roberts fashioned himself during his confirmation hearings as more of an umpire than an ideologue? Well, I remember an umpire named Eric Gregg, whose "strike zone" during the 1997 NLCS between the Atlanta Braves and Florida Marlins resembled a fun mirror from an old-fashioned amusement park, so distorted were its borders. Gregg's horrendous judgment handed the Marlins the pennant and a trip to the World Series. Granted, the Braves would have blown it; but umpires should never decide the outcome of a game. For the 2006 Term, Roberts deserves the Eric Gregg Award, not the John Marshall Award.

The Court's acceleration to the right this term was no surprise. Roberts had a trusty Watson to his Edison, Sam Alito, who also received the Post's endorsement. Alito and Roberts voted in near-lock step this term; their agreement rate of 94% was hight than any other pair on the Court. Even the Post admitted that Alito and Roberts did not split in any unanticipated way.

Yes, Post-ies, John Roberts is conservative. Very. Sam Alito is conservative. Very. They were nominated because of their conservative political values and their willingness to translate those values into the law, not because they held some sort of "bi-partisan" conception of the judicial "process."

Will the next few terms mean the end of abortion rights, a complete end to affirmative action, a reconsideration of the recent decisions carving out exceptions to the death penalty for the mentally retarded and juveniles? Maybe or maybe not. But can we all just put aside the talk about "process" and "umpiring" and "restraint" and all the other fig-leaf terms to describe what the law is really about: the extension of politics by other means.

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