Bench Memos

Dionne’s “Case for a ‘No’ Vote”

Because I cling to my belief, based on the good work he does in the context of the “religion in the public square” debate, that E.J. Dionne is more than merely a partisan, I am extremely disappointed by his lame “Case for a ‘No’

Vote on Roberts” in Sunday’s Washington Post.

Dionne complains, “[t]he Senate and the public have a right to far more assurance about how Roberts would use that power than they have been given in these hearings.” Well, no. That is, if by “assurance about how Roberts would use [his] power” Dionne means “assurance that Roberts will vote in a way that accords with Dionne’s policy preferences” (which is, I think, all it means), then no, they don’t have that right. And, in any event–and notwithstanding the scripted, phony complaints of some of the Democratic senators–the senators, and the public in fact know far more about Roberts’s work, methodology, and views than was known about any recent nominee.

Dionne writes, “[i]f senators simply vote ‘yes’ on Roberts, they will be conceding to the executive branch huge power to control what information the public gets and doesn’t get about nominees to life positions. The administration has stubbornly refused to release a share of Roberts’s writings as deputy solicitor general. This is a dare to the Senate, and the administration is assuming it will wimp out. A ‘yes’ on Roberts would be a craven abdication of power to the executive branch.” Again, this is complete nonsense, unworthy of someone who knows as much about government and the Constitution as Dionne does. The administration does not have, and has never claimed, “huge power to control what information the public gets” about nominees (the papers have been writing about and investigating Roberts for months); and there is nothing “stubborn[]” about the administration’s refusal to release documents that every Solicitor General in recent years agrees should not be released.

The truth is, the Democrats don’t care what is in the documents, and they know full well that the administration will not (and should not) release them. They are asking for them nonetheless, to create–in bad faith–the impression of a “stubborn” and secretive administration. To use Dionne’s words, for the administration to give in–to “wimp out”–would be a “craven abdication” of its responsibilities to future presidents. (In similar fashion, the Democrats have asked Roberts about particular cases not so much because they think he should answer–they know he shouldn’t, as Senator Biden’s statements during the Ginsburg hearings showed – ut because they are hoping the American people won’t understand why it is that for Roberts to answer would compromise the integrity of the judicial process).

I just don’t understand what moves a reasonable, informed, engaged commentator like Dionne to embrace such disingenuous, partisan error. The arguments against Roberts are, and have always been, frivolous. Elections matter, and Roberts cannot come as a surprise–and should, perhaps, come as something of a relief–to those who, like Dionne, wish the last election had turned out differently. In a sane world, Roberts would be confirmed 100-0. Or, at least, he would get the 95+ votes that Justice Ginsburg enjoyed. That it is quite likely around 30 senators will salute the People for the American Way and vote “no” is a disgrace.

Most Popular


A Home Run by Trump

In 2007, the Justice Department was in disarray. Though it was largely exaggerated, a controversy over the firing of some United States attorneys, the intrusion of politics into Justice Department hiring decisions, and White House contacts with Main Justice forced the resignation of an overmatched attorney ... Read More