Bench Memos

NRO’s home for judicial news and analysis.

Rewriting History


It appears to be fast becoming the received mainstream wisdom that John Roberts’s confirmation was “easy”, and “free of partisan rancor.” This is nonsense. The fact is, a stellar nominee — a nominee who is, to put it mildly, every bit as distinguished, decent, and “mainstream” as Justices Breyer, Ginsburg, Scalia, Kennedy, and Souter — got 22 “no” votes. Half of the Democratic senators voted against Roberts based entirely on their opposition to the (entirely reasonable) substance of his views; they voted, that is, to endorse the proposition that Bush’s election is not relevant to the question who should be confirmed to the Court. This, it must be emphasized, is a striking and depressing development.

It should also be remembered that Roberts was forced to endure condescending and insulting attacks, insinuations, and pseudo-questions to which Justices Breyer and Ginsburg — whose confirmations really were free of partisan rancor — were not subjected.

Make no mistake. The Roberts confirmation process — though it ended very well — was ugly, though Chief Justice Roberts performed very, very well (as we had every reason to expect he would). I’m pleased that a few dozen Democratic senators voted “yes”, but we usually don’t praise people for doing the obviously right thing. To quote Chris Rock: “What — you want a cookie?”


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