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.


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

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?

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).