Another hanging chad has dropped. His name is John G. Roberts
Jr., and he undoubtedly will turn out to be opposed to abortion
rights, affirmative action, an expansive view of federal powers and a
reading of the Constitution that takes a properly suspicious view of
the state's embrace of religion. In these and other matters -- the
death penalty, for instance -- he is expected to substantially reflect
the views of George W. Bush, the man who nominated him to the Supreme
Court, because that was what the election of 2000 and its sequel were
all about. You hang enough chads, and you get to change the Supreme
Court.
My predictions on how Roberts will vote when he (almost
certainly) gets to the court are not based on a close reading of his
scholarly writings -- there are almost none -- or a parsing of his
decisions as an appellate judge. It is based entirely on the
supposition that Bush has taken the ideological measure of his nominee
and has been assured by others that Roberts is a conservative, maybe
deeply so. The White House in turn has passed that message to
conservative groups. They all gave praise. "The president is a man of
his word," said the very important Tony Perkins, president of the
Family Research Council. "He promised to nominate someone along the
lines of a Scalia or a Thomas, and that is exactly what he has done."
God save us all.
Actually, the president has done no such thing. As opposed to
Clarence Thomas, the oddest choice since the mad emperor Caligula
proposed making his horse a consul of Rome, Roberts comes glittering
with dazzling academic bona fides and, from a liberal perspective,
seditious geniality. And, as opposed to Antonin Scalia, he has not
managed to alert the opposition with ideological writings that are a
joy to read and a fright to ponder. From what everyone is saying, had
Roberts not chosen law, he would have made a dandy salesman. Everyone
likes him. He sorely lacks the villainous aspect of the storied Robert
Bork.
Bork's nomination fight is frequently cited nowadays, often by
those who think a great injustice was done. Not so. What doomed Bork
was what a Post editorial from the time (1987) called his "almost
frightening detachment from . . . the real-world consequences of his
views" -- particularly in the sensitive area of civil rights. It was
with the utmost reluctance that The Post opposed Bork's nomination,
even predicting that his rejection would "pave the way to a demagogic,
highly politicized future where confirmation proceedings are
concerned." Nonetheless, because Bork suggested that the law was more
important than justice, the paper opposed him. So, ultimately, did a
comfy majority of the Senate.
The reasoning of that editorial still makes sense to me. If, in
the course of the Senate hearings, it becomes clear that Roberts, too,
values brittle ideology over supple common sense, then the Democrats
would be justified -- even obliged -- to put up a stiff fight. I
suppose it can be argued, and I know it will, that abortion is one of
those matters. It entails the aforementioned "real-world consequences"
that are all too familiar -- consequences that the pro-choice people
keenly appreciate and consequences that the antiabortion people feel
no less passionately about. The Roe decision may by now be a
matter of settled law, but the issue remains an open sore in the body
politic.
But Roberts alone is not enough to reverse Roe v. Wade ,
and, anyway, a pro-choice nominee is just not in the cards. Most
Americans support abortion rights. Still, I doubt that abortion is
seen as the single most important issue in their lives -- insufficient
reason for a scorched-earth response to the nomination. Abortion lacks
the historical resonance of civil rights or, for that matter, a
similar consensus.
Shortly after Sandra Day O'Connor tendered her resignation, I
spoke to an important Democratic senator who confided that Bush was in
a trap. I tried really hard to follow his logic, but it eluded me. It
seems to me that it is the Democratic Party that has a problem. It can
either come to terms with reality or appear, to much of the country,
both petulant and in the grip of special interests, particularly the
pro-choice lobby. In effect, the fate of this nominee was settled back
in the year 2000 when Florida, for better or for worse, squinted hard
and pronounced George W. Bush its winner. The chads have spoken.
cohenr@washpost.com
