September 18, 2005

The NYT and WaPo editorials on the Roberts nomination.

The NYT opposes John Roberts' as Chief Justice: The position of Chief Justice "is too important to entrust to an enigma, which is what Mr. Roberts remains."
Over days of testimony, he dodged and weaved around many other critical legal issues. On abortion, church-state separation, gay rights and the right of illegal immigrants' children to attend public school - all currently recognized by the court - he asks to be accepted on faith. That just isn't good enough.
The WaPo comes out in favor of Roberts, making what I think is the most basic point: "Judge Roberts represents the best nominee liberals can reasonably expect from a conservative president who promised to appoint judges who shared his philosophy." The WaPo analyzes the politics of opposing Roberts for the Democrats:
[B]road opposition by Democrats to Judge Roberts would send the message that there is no conservative capable of winning their support. While every senator must vote his or her conscience on the nomination, the danger of such a message is considerable. In the short term, Mr. Bush could conclude there is nothing to be gained from considering the concerns of the opposition party in choosing his next nominee. In the longer term, Republicans might feel scant cause to back the next high-quality Democratic nominee, as they largely did with Justices Ruth Bader Ginsburg and Stephen Breyer.

If presidents cannot predictably garner confirmation for nominees with unblemished careers in private practice and government service, they will gravitate instead to nominees of lower quality who might excite their bases. Mr. Bush deserves credit for making a nomination that, on the merits, warrants support from across the political spectrum. Having done their duty by asking Judge Roberts tough questions, Democrats should not respond by withholding that support.
Clearly, this is important, and it's something the NYT editorial doesn't talk about at all. Is it because the NYT is more principled? No, the NYT is more political, insisting that the nominee come out in favor of the positions it cares about before it will support him. The Times doesn't even face up to the issue of the illegitimacy of binding the nominee to particular outcomes. The WaPo stands back and looks at the politics of the nomination. The NYT remains entirely embedded in the politics.

Extra observation: The NYT brings up the french fry case. Did any Senator question him about that one? No! I wonder why not, since it fits the John-Roberts-doesn't-care-about-people theme so well. Oh, how I would love to know the details of why they decided not to bring up the french fry about which we heard so much before the hearings. I'm guessing they decided it clashed with their most important theme: deference to the legislature (AKA: how much power we want you to say we have).

UPDATE: A reader writes:
Your reason on your blog for Senators not bringing up the french fry case seems accurate, but there is another interesting aspect to this. Senator Feinstein seemed to be one of the major advocates of almost unlimited legislative power via the Commerce Clause (at least based on what little I heard and on one of your posts). But, Gonzales v. Raich oveturned a law that a large majority of her constituents passed (well over sixty percent if I recall correctly--and probably near unanimous among those who vote for her). I presume that for her to be consistent, one would have to assume she must support the majority result in Raich, thus effectively negating the wishes of her constituents. I haven't heard anything about it in local California newspapers, however.


Beldar said...

Your point about Hedgepeth (the french fry case) is indeed remarkable! I'd offer up an additional, alternative (and self-important) explanation for it, though:

In the run-up to the hearings, that case was very prominent both among the organized criticisms of Judge Roberts and in the responses to them. Indeed, from the day Roberts was nominated, I thought and wrote that the way he handled the Hedgepeth case was one of the most encouraging windows into his judicial style and philosophy. In large part due to the reaction time and influence of the blogosphere, the clash of characterizations over the French Fry Case pretty well got itself worked out before the hearings. And my theory is that the staffers feeding questions to the Democratic senators came to the correct conclusion — that is, that in the pre-hearing clash over Hedgepeth, the anti-Roberts forces had gotten chewed up and spat back out — and so they stayed away from it in the hearings.

Jeff with one 'f' said...

Ann, I wonder what you would make of Nat Hentoff's touchy-feely denunciation of Roberts:

John Roberts v. One French Fry,hentoff,67717,6.html

appell8 said...

Actually, I think Senator Cornyn read into the record the first paragraph of Hedgepeth in support of Roberts. It includes an evocative phrase something along the lines of "That policy was reversed as a result of the kind of publicity reserved for officials who make young girls cry."

That phrase, to me, conveys a great deal of insight into the Roberts worldview. Sometimes the political system works without any intervention by the courts. Pretty revealing and pretty appealing.

Ann Althouse said...

My statement is based on the absence of the term "french fry" (other than in Thornburgh's testimony). I glancing reference to the case would escape that search, but any actual questioning would have had to use it (I think).

Simon Kenton said...

A friend is durably, celibately, volubly, and very unhappily married. He tells at ghastly length, until I say:

"Then divorce her."

"I could never do that." He tells at more ghastly length.

"Then stick with her and cheat."

"I could never do that." More tales.

"Then stick with her and shut up."

"I know. I know. It's just that she...."

Ms Althouse and the NYT?

alikarimbey said...
This comment has been removed by a blog administrator.
California Dog said...

just 'cause I'm not sure you would see this otherwise:

"Leaving aside the Post's premise, which is that Roberts is the "best" justice, from a liberal perspective, that Democrats could hope for, I find nothing wrong with he notion that there's "no conservative capable of winning their support." As the minority party, there's basically one way for Democrats to express their objection to such a nominee for the record, and that's to vote against him. Doing so simply puts on the record that they don't support his nomination, they don't want him as Supreme Court justice, and if it were really up to them someone else would have the job.

If Bush had genuinely worked with Democrats, as Clinton did with Republicans, in choosing a nominee (Orrin Hatch brags that he gave Ginsburg's name to Clinton), then such reciprocation might be warranted. But none of that actually happened.

If the Democrats unanimously vote against Roberts it will not prevent him from become Cheif Justice. All it will do is send the message that they disapprove of the choice, and it's a choice they should certainly disapprove of.

Let us hope that the Democrats begin to understand that the worst set of advisers they have are the Beltway media who have their own interests at heart."


Ann Althouse said...

California Dog: To get a sense of what I think about Atrios, read through this old post of mine. Because of the way he treated me, I have a low opinion of him. It's one thing to be a big partisan, quite to be so into your partisanship that you don't care how you treat real people. What you just quoted is hackery. If the Democrats follow reasoning like this, they will never get a majority back. I could detail why that comment of his is so poor, but I don't respect him enough to take the time with it. Let Atrios go back to his trademark "Open Thread" posts. I really don't care.

Bruce Hayden said...

California Dog,

I think that there is a big difference between voting to confirm a president's nominees and working with the opposition party. I find it hard to believe that Bill Clinton actually ran Ruth Bader Ginsberg by the Republicans before nominating her to the High Court. My view is that the Republicans then were more willing to defer to the president's power to appoint Supreme Court Justices than are the Democrats today.

That is why I find the WaPo much better advice. I see three things happening if the Democrats engage in party line votes as to Judge Roberts. First, the President's future nominees are likely to be more controversial. Secondly, if the Democrats ever regain the presidency, expect the Republicans to provide some pay back. And thirdly, this will further weaken Red State Democratic Senators (such as Ken Salazar here in CO).

California Dog said...

I find it hard to believe that Bill Clinton actually ran Ruth Bader Ginsberg by the Republicans before nominating her to the High

Well Bruce, that is why you are a moron. Sen. Orrin Hatch actually suggested Justice Ginsberg to Clinton. He hadn't been looking at her.

But don't let your utter lack of knowledge inhibit the formation of your opinions. I wouldn't expect any less of someone parroting GOP lies.

California Dog said...

Altouse - fair enough, it's your blog.

I have to disagree that the Dems won't get a majority back if they act like the opposition party they are. Seems like the past five years have proven your opinion wrong.

Larry said...

California Cur: I wouldn't expect any less of someone parroting GOP lies.

Strong words from someone who really does parrot Atrios' lies, huh?

Just on the substantive point, Bruce, here's a post that concludes that "... Clinton's consultation with Hatch was a matter of political necessity more than anything else".

alikarimbey said...
This comment has been removed by a blog administrator.
alikarimbey said...

I goofed on the url.