Bench Memos

NRO’s home for judicial news and analysis.

Hopes and Fears


Jonathan Adler hopes that Roberts “sails through with single-digit opposition.” I don’t. Not because I think Jonathan is wrong in his take on E. J. Dionne or on the liberals in the Senate. In fact, I agree with Jonathan about all that.

The reason our hopes differ is this: Given the political realities of the spectacle looming before us, something will have gone way wrong for conservatives if nine or fewer Senators oppose Roberts. I will be very surprised — no, shocked — if Roberts sails through. I do not doubt he will confirmed. It is just that I expect twenty to thirty “no” votes.

But if John Roberts does sail through it will most likely be because the liberals conceded the battle in order to win the war. They will have successfully used Roberts to define conservatism down. They will have made the strategic choice to christen him by their votes as an “acceptable” or “mainstream” or “moderate” conservative, much like they now say O’Connor was. The thing is, they will have also used Roberts to marginalize those “extreme” conservatives — Bork, Scalia, Thomas, and the other nuts enamored of what they (the liberals) call “the Constitution in exile.” That is the constitution about which Cass Sunstein recently spoke, the one that is not safe for families, privacy, racial harmony, or for the arroyo southwestern toad.


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