from powerlineblog.com
It didn't matter whom President Bush nominated. The Democrats were poised to attack, and they would have unleashed whatever ammunition they could muster regardless of who the nominee was. "People for the American Way" and other extreme-left groups were faxing out packets of attack materials on John Roberts within minutes after his nomination was announced.
So: what have they got? The short answer is, little or nothing. You can access PFAW's "report" on Judge Roberts here; it's a feeble attempt at opposition research. Most of it deals with Roberts' tenure as deputy Solicitor General. In that capacity, for example, he wrote a brief that argued that Roe v. Wade was wrongly decided and should be reversed. There are two problems with these attacks on Roberts' briefs. First, the Solicitor General has a client: the President and his administration. He doesn't just make stuff up, he argues the position that is formulated by the President, the Attorney General and other policy makers. Thus, in the abortion case just referred to, Rust v. Sullivan, Roberts' brief said:
We continue to believe that Roe was wrongly decided and should be overruled . . . [T]he Court’s conclusion[] in Roe that there is a fundamental right to an abortion . . . find[s] no support in the text, structure or history of the Constitution.
The "we" is the first Bush administration, Roberts' client.
The second problem with the left's attacks on positions taken by Roberts when he was a deputy Solicitor General is that in 2002, he was confirmed to the D.C. Circuit Court of Appeals, the traditional training ground for the Supreme Court, by a unanimous vote of the Senate. So it seems a little difficult for the Democrats to go back now and try to resurrect these old issues.
The Dems are left, then, with Roberts' brief tenure on the appellate court. The pickings are very slim. They have attacked Roberts' dissenting vote in Rancho Viejo v. Norton, where Roberts would have granted en banc review to decide whether the Endangered Species Act could constitutionally be applied on the facts of the case. Roberts' dissent was based on recent Supreme Court jurisprudence which has revitalized the Commerce Clause as a meaningful constraint on federal power. Under the Supreme Court's cases, his position appears to be correct: the issue is not whether the enforcement of the regulation will affect interstate commerce by blocking a development project. The issue is whether the statute at issue, as applied, is itself a regulation of interstate commerce. Given that the toad in question chooses to live its entire life in California, for reasons of its own--as Roberts put it--his dissent seems sound under current Supreme Court case law. In any event, this is hardly an issue to fire up the general public.
The Democrats also will want to talk about Hedgepeth v. Washington Metro Authority, in which a twelve-year-old girl was taken into custody, handcuffed, and driven to police headquarters because she ate a french fry in a Washington metro station. Roberts wrote the opinion for the D.C. Circuit, affirming a district court decision that dismissed the girl's complaint, which was predicated on the Fourth and Fifth amendments.
Roberts' opinion is a good example of conservative jurisprudence. He begins by noting that "No one is very happy about the events that led to this litigation," and pointing out that the policies under which the girl was "apprehended" have since been changed. Nevertheless, the controlling law was clear, and the court was not authorized to second-guess the wisdom of the District's policies: "The question before us," Roberts wrote, "is not whether these policies were a bad idea, but whether they violated the Fourth and Fifth Amendments to the Constitution." One basic difference between liberals and conservatives is that conservatives understand that there are any number of ideas that may be stupid, but are not unconstitutional. As Roberts wrote: "Rational basis review does not authorize the judiciary to sit as a superlegislature."
The Hedgepeth case may tug at certain heartstrings, but it plainly was decided correctly. Roberts wrote for a 3-0 panel affirming a district court decision, so the conclusion was unanimous. It's hard to paint a judge who is part of a unanimous consensus as "out of the mainstream."
Another case that PFAW included in their anti-Roberts dossier was his vote in favor of executive privilege in the case brought by interest groups against Dick Cheney in connection with the Vice-President's energy task force. In the D.C. Circuit in 2003, Roberts was part of a 5-3 minority. Unfortunately for the Democrats, however, the Supreme Court reversed the following year by a 7-2 vote. Again, it's hard to portray Roberts as some kind of extremist when his view prevailed by a wide margin in the Supreme Court.
So the left has very little to work with in trying to rouse public opposition to Roberts' nomination. That leaves only one alternative: they will ask lots of questions. This theme has already emerged. They will try to force Roberts to take a loyalty oath to the liberal decisions of which contemporary Democrats are fondest. And, as Chuck Schumer said tonight, they will proceed on the assumption that "the burden is on the nominee to prove he is worthy," not on the Democrats to prove he isn't. So the Dems will try to dream up questions that Roberts can't properly answer, and documents they can request that can't be provided, relating, perhaps to Roberts' service as deputy solicitor general.
Nevertheless, barring some stunning and unforeseen revelation, the outcome is not in doubt. The Democrats simply don't have anything to work with. And, thankfully, they are a minority in the Senate. [Power Line]
1:06:19 AM 
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Saw the best comedy/tragedy last night in the after the nominee whining session, otherwise known as the Democrat Response. After hearing Leahy's bla bla woof woof, the New York Liberal (an upper-case lib) Senator, the male one, begins by saying how much more important this nominee to the Supreme Court is. So much more important than in the lower courts, after all, he said, "the Supreme Court is where laws are made." I'd wager that there are a lot of 5th graders in private schools and homeschoolers scratching their heads on that line. Even they know the court does not make law. Lawmakers make law, and they are our state legislatures and Congress. Please keep it up Chuckie. Mid-term elections aren't too far away. I don't know who's digging faster, Howard Dean or Charles Schumer? But when their digging themselves a whole, some say, just leave them alone. I don't know, I'd consider offering them a bigger shovel.
