Guest Column
The Roberts Trap
By Nathan Tabor
John Roberts has now been confirmed as chief justice of the Supreme Court,
replacing the legal giant William Rehnquist. But it still remains to be seen
whether John Roberts is really the best man to fill those legendary
Constitutional shoes.
Despite the partisan results of the Senate confirmation vote‹every
Republican senator voted for Roberts, while the Democrats split down the
middle, 23-22‹there is significant disagreement about what this will mean in
the long run.
The dissenting Dems included some of the most liberal members of Congress:
Kennedy, Kerry, Feinstein, Boxer, Obama and, of course, Hillary Clinton.
Thus the ³good² conservatives appear to have won and the ³bad² liberals have
lost.
But that current public perception may prove to be just smoke and mirrors in
the future. Some of the conservative senators who voted for Roberts did so
despite reservations, believing that the president¹s next nominee would be a
clear conservative. Even before the vote, some astute legal observers were
predicting that Roberts¹ replacement of Rehnquist would actually result in a
more liberal slant for the Court. In his Washington Times article of
September 20, Bruce Fein, a constitutional lawyer who once worked with
Roberts at the Justice Department, offered an in-depth analysis of the
fundamental differences Roberts and Rehnquist.
³Compared with the late Chief Justice Rehnquist, [Roberts] is more
accommodating to First Amendment rights of free speech and association,
Fourth Amendment privacy interests, and the power of Congress to encroach on
traditional state prerogatives under the Commerce Clause. Judge Roberts also
is less inclined to disturb liberal Supreme Court precedents,² Fein
observed.
³In sum, President Bush¹s shifting of Judge Roberts from the liberal seat of
Justice Sandra Day O¹Connor to Rehnquist¹s conservative chair marked a
nontrivial ideological victory for Democrats and a doctrinal setback for
Republicans.²
Just when conservatives were set to do a victory dance in the end zone, in
came another penalty flag threatening to push their progress back another 15
yards.
Some serious conservatives questioned Roberts¹ appointment beginning back in
July, including columnist Ann Coulter. ³We don¹t know much about John
Roberts,² Coulter opined. ³Stealth nominees have never turned out to be a
pleasant surprise for conservatives. Not ever.²
While Focus on the Family, the Christian Coalition, and the American Center
for Law and Justice were all fawning over Roberts and praising President
Bush for appointing him, longtime conservative icon Howard Phillips defied
the crowd and blasted Roberts for doing pro bono work for homosexual
activists in the landmark 1993 Romer v. Evans case in Colorado.
³Judge Roberts apparently had no moral objection to using his skills to
advance the homosexual agenda,² Phillips noted. ³It suggests an absence of
understanding by Mr. Roberts that homosexual conduct is sinful and ought to
be discouraged.
³We do not need another Anthony Kennedy, Sandra Day O¹Connor, or David
Souter,² concluded Phillips.
To which I say: AMEN.
The fact is that we knew little about John Roberts¹ judicial temperament
when he was nominated. Much of what we did learn during his hearings was of
no consolation. Particularly disturbing was his assertion that as a judge,
he will not be guided by the moral precepts of his Roman Catholic faith. ³My
faith and my religious beliefs do not play a role,² he testified to the
Senate Judiciary Committee.
He also affirmed his affection for precedents, such as the Roe v. Wade
ruling that made abortion-on-demand the law of the land. He agrees with
those constitutional ³penumbras² that are at the heart of the Griswold v.
Connecticut case, which made Roe possible.
Now enter Bush¹s nomination of White House counsel Harriet Miers to succeed
Sandra Day O¹Connor and the ³Roberts trap² has been sprung.
Miers is a clean slate with no paper trail and no discernable judicial
philosophy because she has never been a judge. This nomination presents far
more missing pieces of the puzzle compared to the Roberts nomination.
But the trap for conservative leaders who were busy patting themselves on
the back for Roberts¹ confirmation was to save face on an even more
questionable nominee. They had supported Roberts on faith. They threw
their support behind Roberts even though details were sketchy at best. Now,
in the name of consistency and a united front, they little choice but to
endorse a candidate that they know far less about for a more key position.
Such are the quagmires created by conservatives when they are too easily
appeased. Why should we support any nominee whose positions on vital moral
issues are too vague?
Grassroots conservatives realized the ruse immediately and were quick to
express their outrage over the latest ³stealth² nominee on talk radio and
the hottest blog spots. Almost as immediately, the White House went into
damage-control mode, assuring conservatives they had nothing to fear because
Miers is not a ³stealth² candidate to the president‹after all, he knows her.
The president even held a hastily prepared press conference in the Rose
Garden to assuage conservative angst.
After almost 60 minutes of questions and answers, if conservatives cut
through the spin and posturing, they are left to ponder this still
unanswered question: Exactly how is Miers‹or even Roberts‹in the mold of
Scalia or Thomas? After all, the president¹s campaign promise to
conservatives was to select judges who were just like Justices Thomas and
Scalia.
In his own words, the president offered, ³I picked the best person I could
find.² With all due respect Mr. President, where were you looking? I don¹t
have the considerable resources that the White House had in this search, but
off the top of my head come the names of Edith Hollan Jones from the U.S.
Court of Appeals, 5th Circuit, and Janice Rogers Brown from the U.S. Court
of Appeals, D.C. Circuit. Jones, who has been on the court since 1985, could
easily establish her conservative credentials. Brown, who recently proved
she can handle the Senate confirmation process, has been a judge since 1994
and her life story embodies the conservative mindset for success. That may
not make her a ³trailblazer² to some, but her judicial record clearly trumps
that of Ms. Miers.
The president seemed to bristle at the assertion that Miers is a stealth
candidate or that her appointment was due to her close relationship with
him, but when pressed for reasons why she should be supported, he offered
only variations of this idea: She helped picked Roberts, she knows what
he¹s looking for in a judge, and because he knows her, he can assure us that
she is the kind of judge he¹s looking for.
That seems less an assurance and more like circular logic that no one
benefits from. Grassroots conservatives deserve far better from this
president.
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Nathan Tabor is a conservative political activist based in Kernersville,
North Carolina. He has his BA in psychology and his MA in public policy. He
is a contributing editor at
www.theconservativevoice.com. Contact him at
Nathan@nathantabor.com.
Copyright © 2005 by Nathan Tabor
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