Early Returns On The Roberts Nomination

There's a long way to go yet, and we may yet get the partisan donnybrook for which both sides have been gearing up for so long, but if the early returns hold up, it looks like I might actually get my wish: a war for which no one shows up.

The New York Times has nothing bad to say about Roberts. Neither does the Washington Post. Both portray him as conservative but smart and non-ideological. The Times goes so far as to use the following as the headline it's its "analysis" piece: " Bush's Supreme Court Choice Is a Judge Anchored in Modern Law." It's hard to see how the Left could effectively mount a challenge to the nomination without the support of such left-leaning MSM as the NYT and the WaPo.

Even the Left doesn't appear to be all that exercised -- at least for now. Oh, sure, MoveOn.org is urging people to "Tell Your Senators to OPPOSE JOHN ROBERTS," but the plea feels more like a knee-jerk reaction than committed opposition. Apart from a short blurb characterizing Roberts as "a right wing corporate lawyer and ideologue [who] opposed clean air rules and worked to help coal companies strip-mine mountaintops, . . . worked with Ken Starr, . . . tried to keep Congress from defending the Voting Rights Act, and [wrote briefs on behalf of clients arguing that] Roe v. Wade should be 'overruled,' " I can't find anything on the MoveOn site that tells people why they should oppose the nomination. For MoveOn, of course, it is enough that Bush appointed him. But they are going to have to come up with a lot more than that to generate much grassroots opposition.

There is also some name-calling and some angst about the danger Roberts could pose to abortion rights, but some on the Left appear to feel that the biggest problem with the nomination is that it takes attention away from the effort to get Karl Rove fired over the Valerie Plame imbroglio. In fact, at least one Left-leaning blogger appears to think the nomination was an "excellent, excellent pick."

In general, though, the sense is one of wariness combined with resignation. No one really has any idea what Roberts thinks. He has been a judge for only two years and has spent the rest of his legal career being a practicing lawyer rather than an academic, so he has virtually none of the written intellectual baggage that so bedeviled Bork. (As such he is exactly the type of nominee the WSJ so ardently wished to avoid. Nonetheless, sycophant that it is, the Journal is jubillant). As a consequence, there is precious little for the Left to point to as a basis for opposition other than the fact that he was appointed by Bush. Nan Aron tacitly admits as much [as quoted in the New York Times]:

"Let's be clear: Judge Roberts is not a stealth nominee, because the president's inner circle knows his views well, even if Americans do not."

But, beyond that, there is a sense that things could have been a lot worse and that the Left should probably save its slings and arrows for a more outrageous fortune.

What do I think? I'm actually moderately pleased by what I have read so far. Exhibit A is this excerpt from Robert's testimony in the Senate confirmation hearings on his nomination to the DC Circuit (courtesy of Greg Anrig at TPM Cafe):

I don't know if that's a flaw for a judicial nominee or not, not to have a omprehensive philosophy about constitutional interpretation, to be able to say, "I'm an originalist, I'm a textualist, I'm a literalist or this or that." I just don't feel comfortable with any of those particular labels. . . . [I]n my review over the years and looking at Supreme Court constitutional decisions, I don't necessarily think that it's the best approach to have an all-encompassing philosophy. The Supreme Court certainly doesn't. There are some areas where they apply what you might think of as a strict construction; there are other areas where they don't. And I don't accept the proposition that a strict constructionist is necessarily hostile to civil rights.

Frankly, apart from smarts, which Roberts apparently has in abundance, that is the one thing I most want in a nominee: an open mind.

And then there is this, from no less an anti-Bush partisan than Charles Schumer [also as quoted in the NYT]:

'[There is] no question that Judge Roberts has outstanding legal credentials' and an appropriate judicial temperament.

Smart, open-minded, outstanding legal credentials, and an appropriate judicial temperment. What more can you ask?

Well, there is this from John Yoo, a former member of the Bush Justice Department [as reported in the Washington Post]:

John C. Yoo, a conservative professor of law at University of California at Berkeley who served in the Justice Department in the current administration, emphasizes what he called Roberts's traditional approach to the law. In the 39 cases that Roberts argued before the Supreme Court -- 25 of which he won -- Yoo said he never pushed the court to adopt "big new theories" but rather argued the facts of his cases.

"He's the type of person that business conservatives and judicial-restraint conservatives will like but the social conservatives may not like," Yoo said.

"What the social conservatives want is someone who will overturn Roe. v. Wade and change the court's direction on privacy," he added. "But he represents the Washington establishment. These Washington establishment people are not revolutionaries, and they're not out to shake up constitutional law. They might make course corrections, but they're not trying to sail the boat to a different port."

Say what? Small government conservatives will like Roberts but social conservatives may not? He sounds like my kind of guy!

Again, it's early yet. But from what I know so far, I am pretty damn comfortable with John Roberts. Certainly he is the very best we could have hoped for from Messers Bush and Rove both in terms of the nomination process and the characteristics of the nominee.