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Bench Memos

NRO’s home for judicial news and analysis.

Rewriting History



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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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