Bench Memos

NRO’s home for judicial news and analysis.

Dog Daze


From today:

From the moment the John Roberts nomination was announced, the media called it a done deal. NPR and The New York Times gushed over his humility, humor and congeniality. With Roberts’sbelief system barely mentioned, you’d think Bush had just nominated Mister Rogers.

In the wake of this media love fest, I keep encountering people who oppose everything Roberts has stood for , but see no use in trying to stop what seems his inevitable confirmation. But we can make a powerful impact by raising the discomforting truth that Roberts may be closer to a smiling Antonin Scalia. However the senators vote—and none of this is foreordained—the issues we debate and principles we raise will echo down the line for future nominations and policies.

Roberts is being hailed as the brilliant Harvard lawyer who gets along with everyone. He’s conservative, but reasonable. He doesn’t froth at the mouth. He barely barks. Unlike Bush’s three most recent Appeals Court appointees, he hasn’t led a right-wing ideological charge. He’s being praised as a nomination Bush should be proud of.

We need to tell a different story—and do our best to get into the media—the arguments raised by our elected representatives, and the awareness of our fellow citizens…

It’s tempting to decide that Roberts is the best we can get, so we should simply accept him, lest we get someone worse. But that traps us in a continuous cycle of lowered expectations, until we accept anyone short of Attila the Hun. I’m not expecting Bush to nominate the next Thurgood Marshall. Even Sandra O’Connor, who everyone now praises, helped put Bush in office to begin with in a decision blasted by legal scholars for its contempt for constitutional precedents, including claims of the participating justices to support states rights. Given the Republicans’ current power, another O’Connor may be the most we can expect, but we have no obligation to accept a candidate as problematic as Roberts.


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