Skip to comments.Fred Barnes: The Safe Pick
Posted on 07/19/2005 11:34:23 PM PDT by RWR8189
Conservatives hoped for a demonstrably conservative nominee with a streak of daring. They didn't get one.
PRESIDENT BUSH kept his promise in nominating John Roberts, a federal appeals court judge, to replace Justice Sandra Day O'Connor the Supreme Court. Since Bush first announced for the presidency in 1999, he has vowed to name judicial conservatives who will interpret the law rather than legislate from the bench and fabricate new rights. Roberts, the president's first Supreme Court pick, qualifies as a judicial conservative, or as Republican Sen. John Cornyn called him, "a mainstream traditionalist." His confirmation will nudge the court to the right. And confirmation appears highly likely.
But there's more to the Roberts choice than that. In choosing among judicial conservatives, there are safe picks and risky picks. With Roberts, Bush took the safe route. Related to this, there are cautious judicial conservatives and bold judicial conservatives. The president tilted to the cautious side in naming Roberts.
How safe was the pick? The answer is very. This is partly because of his impressive credentials as a brilliant legal scholar and man of solid temperament and character. More important, he's already been tested in the Senate and passed muster. In 2003, his nomination to the U.S. Court of Appeals for the District of Columbia sailed through the Senate Judiciary Committee on a 16-3 vote. He cleared the full Senate on a voice vote. If you are committed to choosing a genuine judicial conservative, it doesn't get much safer than Roberts.
Bush had the opportunity to take a riskier approach. His list of possible nominees included a number of federal judges who would have faced truculent opposition by most Senate Democrats and by the liberal groups allied with them. These included Judges Michael Luttig of the 4th U.S. Court of Appeals and Edith Jones of the 5th. Confirmation of either would have been difficult and involved a nasty and bitter clash between Republicans and Democrats. Still, they'd likely have been confirmed. The hearings and debate on Roberts are expected to be kinder and gentler.
More than any decision in Bush's second term, conservatives around the country have been focused on what he'd do when faced with a Supreme Court vacancy. Their hope was for a demonstrably conservative nominee with a streak of daring. In Roberts, they didn't get one, at least from all appearances. He's an establishment conservative, respected as a private attorney and admired as a judge. Audacious he is not. On the other hand, there's little concern that he might drift sharply to the left as Justice David Souter, nominated by the elder President Bush, has.
The Roberts nomination didn't prompt conservatives to jump for joy, though he was widely praised. Cornyn called him a "solid pick." Republican Sen. Tom Coburn of Oklahoma offered no praise at all. He said the Senate must examine Roberts' "loyalty to the Constitution and its strict construction." Sounding a bit like Democratic Sen. Chuck Schumer of New York, who is sure to spearhead the opposition to Roberts, Coburn said senators have the right to ask "any appropriate question."
Social conservatives were hoping for more. No doubt they'll line up in support of Roberts when Democrats like Schumer and groups such as People for the American Way begin to attack him. But they dream of the day when there are five votes on the court to reverse the 1973 Roe v. Wade decision, which legalized abortion. Now there are only three. Is Roberts likely to join a anti-Roe bloc on the court? Probably not.
Fred Barnes is executive editor of The Weekly Standard.
Rarely do I disagree with Fred Barnes, but this is one of those occasions. Judge Roberts is far more Conservative than everyone on the list besides Luttig. Judge Roberts is 50 years old and he will make a huge impact on the Court and we need to rally behind him
Sen. Cornyn's comment deserves to have the iris around it: It's high time recover the meaning of language. "Extremist" fits better for a liberal, because liberals call themselves "progressive" because they are "progressing" from the mainstream.
Kudos, Sen. Cornyn. Freepers, take note.
Justice Roberts seems a fine choice.
I could have lived with Ann Coulter as a choice though.
She has the great legs for the court, that is for sure...
A msm thumbnail sketch:
John Roberts on the issues
ABORTION: As a lawyer in the administration of President Bush's father, he helped write a Supreme Court brief that said, "We continue to believe that Roe (v. Wade) was wrongly decided and should be overruled."
RELIGION: Roberts unsuccessfully urged the Supreme Court to rule that public schools could sponsor prayer at graduation ceremonies. "We do not believe ... that graduation ceremonies pose a risk of coercion," said the brief Roberts helped to write on behalf of the first Bush administration.
ENVIRONMENT: As a judge, he was sympathetic to arguments that wildlife regulations were unconstitutional as applied to a California construction project. The government feared the project would hurt arroyo toads.
CRIMINAL MATTERS: His votes on the bench have been mixed. He ruled in favor of a man who challenged his sentence for fraud, then said police did not violate the constitutional rights of a 12-year-old girl who was arrested, handcuffed and detained for eating a single french fry inside a train station in Washington.
POLICE SEARCHES: Joined an appeals court ruling in 2004 that upheld police trunk searches, even if officers do not say they are looking for evidence of a crime.
MILITARY TRIBUNALS: Roberts was part of a unanimous decision last week that allowed the Pentagon to proceed with plans to use military tribunals to try terrorism suspects held at Guantanamo Bay.
I think Barnes is also wrong in his description of Souter "drifting left" as well. While some Justices have "grown" over the years, Souter went through a pubescent growth spurt within a year of joining the Supremes.
Great point. The fact is, being conservative puts one much closer to the mainstream than does being liberal.
Liberals are "progressive" like cancer.
They want to euthanize you, neuter you, and abort your children. They cling to gay marriage and higher taxes and government-run hospitals (ever been treated in a low-morale field hospital??).
Fred was in a snit tonight; he must have crossed and uncrossed his arms 100 times.
This was a good pick. Roberts was my "second" choice, but I Bush had a reason for this. He's saving Luttig for the Rehnquist seat, and Edith Jones for Ginsburg's seat.
Ginsburg's seat? Are you kidding? Her leaving while Bush is president is a pipe dream.
One of those two seats will be for a Hispanic. Here's hoping it's Garza and not Gonzalez.
Roberts was a great choice, I think Fred was holding out for Luttig or Brown
I think Barnes' main point is that if the Senate Democrats had objected more strenuously in 2003, they might have grounds to object now. They did not, therefore any objections they may raise now would be pure "politicking" and the height of hypocrisy.
If there's anything to disagree with Barnes' on, perhaps it is his assumption that the Democrats will see the trap and avoid it by pass Roberts through with little or no opposition.
Of course, the Democrats are going to fall for the trap (probably orchestrated by Rove back in 2003 when Roberts was first nominated for a judgeship... ;-). This means that another fraction of right-leaning Democrats are going to see the hypocrisy of the Democratic leadership and swing their votes in 2006 to Republicans.
Does anyone know what Sununu and Rudman had to say for themselves? They vouched for the guy, and yet, soon after being seated, Souter sure didn't waste any time doing a sharp left. Did he have them fooled or did they just plain mislead 41 about how he'd be?
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