26
Jul
Elevating the Debate
What do Democrats do with the Roberts nomination? Do we give him a pass and focus on the Rehnquist retirement, hoping we get lucky and he turns out to be another Souter? Do we “Go to the Mattresses” and smear the guy? Do we just provide token opposition? Or do we do some “jujitsu” and support Roberts, hoping the religious right gets worried?
I think we should do none of those things. Instead, I believe that we should do to Roberts what Lincoln did with Douglas: change the terms of the discussion by focusing on fundamental principles. We might lose, but we also might change the overall dynamic.
As it stands now, nominees to the bench don’t have to prove that they’re qualified – the opponents have to prove that they’re unqualified. This is the only way that the “stealth nominee” strategy can work. What we need to emphasize is that just because the President thinks you’re a good golfing partner doesn’t mean you’re ready to decide what the Constitution means. To put someone on the bench when we have no idea how they will behave as a judge amounts to gambling with the Constitution. No thanks.
This is a debate I believe we can win. Roberts has precisely 2 years of experience as a judge. That’ s right – two. That’s like making me President of IBM because I managed a convenient store for a little while. Ridiculous.
But what about all his experience as a lawyer? Nice try. If they want to invoke his experience as a corporate lawyer and in the solicitor general’s office, then the content of his legal career becomes fair game. This means that his anti-abortion and pro-business briefs, and the nature of his corporate clients, have to be evaluated with great scrutiny because these are the only clues we have to the man’s judicial opinions. They can’t have it both ways, wanting to invoke his legal career as a qualification while shielding the details of that career by claiming that Roberts was “just a lawyer.”
With so little experience, we must ask ourselves why President Bush selected this nominee. Are you really telling me that out of the entire federal judiciary this man is the most ready to be a Supreme Court judge? I find that hard to swallow. Was it because he had no paper trail and could get confirmed? Then we are saying that he with the fewest qualifications should get a job – which was certainly true for the President himself, I suppose. Or was it because of his ideology, which Bush might have some clue about but we don’t? Then his ideology becomes an appropriate subject for debate.
Aside from his lack of experience or obvious qualifications, Roberts’ membership in the Federalist Society should also debar him from holding a high court position. Roberts is affiliated with the organization, his recent obfuscations notwithstanding, an organization which has a radical ideology dedicated to repealing a century of jurisprudence. There may be a lot of people in the Federalist Society, but this doesn’t make it okay. There were a lot of people in the NAZI party and the Klan too – that didn’t make those groups acceptable either.
The last defense of the scoundrels will be to say that these are new criteria. We’ve never applied such standards to nominees in the past, either when it comes to qualifications or the Federalist Society. We’ve always allowed the President a wide latitude.
Well maybe we shouldn’t have. Just because something is a tradition doesn’t make it a good thing – slavery and denying the poor and women the right to vote were traditions too. If in the past we have allowed radical or risky judges on the bench, then we should own up to our mistakes. The first thing we should do is stop compounding those mistakes.
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Your argument against the confirmation of Judge Roberts seems rather weak to me. First, his experience as a judge is certainly not inconsequential; he has served for 2 years as a judge on the D.C. Circuit Court of Appeal, one of the highest federal judge positions in the country. Similarly, his experience as an advocate in private and government practice is very impressive. He is widely recognized as one of the top appellate lawyers in the country. This high level experience is hardly akin to hiring a convenience store manager as the president of IBM.
Second, the legal positions maintained by his clients in litigation or appeals do not necessarily reflect his views as a judge. A lawyer must advocate the positions of his or her clients, not his personal feelings on an issue. The solicitor general’s office, for example, must represent the interests of its clients, viz. the various agencies who are parties or amicus curiae before the Supreme Court, not the personal views of its attorneys or even of the solicitor general.
Third, he has earned a good reputation as a temperate and fair-minded advocate. Unlike Justice Scalia, for example, Judge Roberts has a judicial temperament important to the administration of justice. A judicial temperament is necessary for litigants to fell like they are receiving a fair hearing, even if they lose the case. The appearance of fairness is very important for society to continue to accept the judiciary’s role, especially since the judiciary must ultimately rely on the executive branch to enforce the courts’ decisions and on the legislative branch to pay for the courts’ budgets.
Finally, if membership in the Federalist Society should disqualify an attorney from becoming a judge, then membership in the ACLU should also disqualify an attorney. Your comparison of the Federalist Society to the Nazi party or the Ku Klux Klan is, quite frankly, at least hyperbole, if not downright silly. You are really trying to criticize his conservative leanings. This, of course, is fair game, but it will almost certainly not stop his confirmation. Ultimately, you hope to tag Judge Roberts with the all beliefs espoused by members of the Federalists Society. However, such “guilt by association” is unlikely to hold up under scrutiny. Among other things, I suspect that his written court opinions, as well as his legal briefs, both of which are public records, do not always conform to the majority view held by the Federalist Society membership. In the end, Judge Roberts will be confirmed with or without a cloture vote, and the personal attacks on his ability and character will more likely than not only rebound to hurt his detractors, not him or the administration.
July 26th, 2005 at 6:45 am