Dear Cliff and Viet:
Cliff raises lots of interesting questions, but here's the burning one to my mind: Is the appointment of John Roberts really a purely ideological one on Bush's part? You and I both agree, Cliff, that he's Really Very Conservative. But the feeling in the air—at least among liberals—is that he's not an in-your-face ideologue, not the kind of guy who would have been an insult to Democrats in the Senate the way that some of Bush's lower-court appointments have been. Maybe we're just so pathetically grateful to Bush for not tapping a Roy Moore, or someone of his ilk, that anyone looks reasonable. Let's confess: We wouldn't have been at all surprised if Bush had picked someone far less qualified and vastly more ideologically aggressive.
But let's also agree that Roberts, even if he is closer to a Scalia/Thomas than to a Kennedy/O'Connor, is just not a terrifying choice for most liberals. The question is why? Why are Democrats behaving as though this selection is about the best they could have hoped for? One answer is that we've already been beaten to death. Roberts is a nice guy rather than a man who raises hackles. As Cliff points out, that goes a long way.
Another, related answer, is that Roberts' judicial style is—with a few exceptions—reserved. He doesn't throw elbows around, like a Judge Michael Luttig or a Judge Janice Rogers Brown. He doesn't appear to be crusading for a wholesale national retreat to the good old days of executing miscreant 'tweens (although he seemingly finds arresting them for French-fry possession to be a cornerstone in good parent-child relations). Perhaps his famous personal humility will translate into judicial humility as well. He may not see a need for a Supreme Court justice to paint with the fattest brush in the set.
Another possibility: Roberts' two-year record on the bench is so thin that there's just not a lot there to truly alarm anyone. That's why Viet's Roe footnote and the poor arroyo toad are the "smoking guns." Bork gave liberals a lot to work with. Roberts is only scary in theory.
Here's a last possibility: Roberts, we can all agree, is unbelievably smart and qualified. There is a way in which a smart ideologue is less scary than a dumb one, although I can't put my finger on why that should be the case.
What I am getting at here is a larger question: What makes a judge with radically different political beliefs from one's own an acceptable choice for the country? No one doubts that Roberts will hike the high court sharply to the right. But liberals aren't packing up and moving to Canada today. I think Roberts' intelligence and humility, and the appearance that he is not a crusader, have gone a long way toward assuring folks on the left that he is a reasonable, principled guy with conservative beliefs. Maybe that's all smoke and mirrors. We'll soon see.
To Viet's point that the sentences about Roe in the Rust v. Sullivan brief simply point out as a statement of historical fact that the Department of Justice had previously argued that Roe was wrongly decided, I respectfully disagree. I know this is what lawyers do all day, and reasonable minds may differ, but to suggest that the important clause in that footnote is "we continue to believe" as opposed to "should be overruled" doesn't quite compute for me. This was the Justice Department urging the court to reverse settled law, and the fact that it was DOJ policy doesn't change that. I do agree with you, Viet, that, as one of multiple authors, Roberts can be deemed less responsible for repeating the views of his client. So, as I suggested before, this footnote is illuminating to me, but not worthy of the attention it has received. Which leads me to ask, what should the Judiciary Committee be scrutinizing before these hearings? Not briefs and memos, not movie rentals, and not the non-answers to "dumb-ass" questions.
So is there anything at all—short of a PET scan—that can be usefully relied upon to illuminate what happens inside a potential judge's head?
Dahlia Lithwick writes about the courts and the law for Slate.