Thursday, July 21, 2005

The Coming Confirmation Battle

Senate Democrats will have to decide how hard to fight against John Roberts, whom Pres. Bush nominated for the Supreme Court. The liberal activist groups (People for the American Way, the abortion advocacy groups, etc.) do not like Roberts because he is a conservative. These groups are always spoiling for a high-profile fight, partly because that is how they raise money, and they will push the Senate Democrats to filibuster Roberts.

On the other hand, Roberts is a highly qualified nominee. The public has already had an opportunity to see that, and they are not likely to support obstruction tactics against such a well qualified individual. The Democrats do not wish to be seen as being purely partisan in their opposition to Roberts. Thus, Senate Democrats must choose whether to please their rabidly liberal supporters or to confirm Roberts after a dignified process worthy of the Senate.

Expect the more liberal Democrats with safe seats (Chuck Schumer (D-N.Y.) and Ted Kennedy (D.-Mass.), for example) to lead the charge. At the least, they will try to use 2 methods to defeat Roberts.

First, Democrats will follow the model they used in the Bolton nomination battle and will request tons of documents that they have no right to obtain. They will certainly ask for documents that Roberts wrote while in the Solicitor General's office. The Solicitor General is the lawyer for the U.S. government. As with all lawyers, the advice and counsel that attorneys in the Solicitor General's office give to their client is privileged and confidential. No one else has a right to see them. Every Solicitor General, whether Republican or Democrat, will agree that such documents must remain confidential. That obvious point will not stop Democrats from mounting a public effort to embarrass the administration for not disclosing the privileged documents.

Second, Democrats will ask Roberts what are his legal positions and personal views with respect to abortion, gay rights, gun rights, and other hot political issues. The last 2 justices who were confirmed, Breyer and Ginsburg (both appointed by Pres. Clinton), avoided giving answers to such questions, and Roberts will, too. Judges should avoid commenting on cases or issues that may come before them. Despite that, Democrats will ask the questions and will demand answers, hoping to persuade the public that the nominee should give answers.

In the meantime, the liberal interest groups will go through the garbage, figuratively and maybe literally, to find any dirt on Roberts. Though one never knows what might turn up, note that Roberts has been through 4 FBI investigations in the course of his career.

Also, Senate Democrats and the liberal interest groups will misconstrue opinions that Roberts wrote at the D.C. Circuit in an effort to make Roberts look extreme. That is unlikely to work. Roberts is a mainstream conservative judge and should not be disqualified on that basis. (If he is unfit to serve, then Ginsburg and Breyer should resign.)

Just 2 years ago, Roberts was confirmed as a judge on the D.C. Circuit by unanimous voice vote. In the prior committee proceedings, only 3 of 9 Democrats (Dick Durbin (D-Ill.), Ted Kennedy (D-Mass.), and Chuck Schumer (D-N.Y.) voted against Roberts. However, it took 2 years to get to that point while Democrats obstructed many of Pres. Bush's judicial nominees. If Democrats mount a filibuster effort, they will have to explain what changed in the last 2 years.

The advantage of picking a nominee like Roberts who has outstanding credentials will become apparent during the confirmation battle. The Democrats in the minority will have little cause to filibuster. If they choose to filibuster, Democrats will likely pay a political price for unprincipled obstructionism.

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