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9/13/2005

The artful dodger

First impressions of the Roberts hearings -

Roberts is a smart man. He's doing a lot of dodging, but he's doing it well.

He's pretty unambiguously embracing the so-called "right to privacy" (I prefer regarding things like abortion and contraception as falling under the rubric of personal autonomy or liberty, but that's just terminology), and pretty unambiguously rejecting goofy "originalist" interpretations of the Constitution. That's good.

He won't say, though, what kind of freedoms the right to privacy entails. That's bad. Predictably, he's staying way the hell away from the abortion issue.

As others have noted, Roberts seems like he's at least sane (i.e., he's not a Scalia or Thomas), and seems to understand legal reasoning in a more sophisticated way than those two do.

He also seems to possess at least trace amounts of personal decency and integrity (again, unlike Scalia or Thomas), so I'm a bit more inclined to believe him when he endorses a constitutional right to privacy, even though I'm always wary of the possibility of another Thomas-like bait-and-switch on that count.

Other reactions -

Ezra Klein seems cautiously optimistic:
I'm hearing a lot of concern that Roberts could be lying through his hearings, saying what Senators want to hear to provoke them into confirming him ... yes, he can do exactly that and there's nothing we can do to stop him ... Nevertheless, there are some reasons for optimism.

...Scalia, Thomas and others faced a Democratic Senate, giving them significantly more reason to lie. Roberts would do more to assure confirmation by appealing to the Republican majority rather than the Democratic minority

...He has pointedly disavowed originalism or any other straight ideological position of judicial issues. That doesn't mean he couldn't cobble together an ad hoc coalition of theories and justifications for extremist jurisprudence, but it does mean he's not offering the code words conservatives want. Again, there's little strategic purpose to doing that.

His Democratic colleagues don't think he's a nutball. They know him better, have known him longer, and have interacted with him more than most everyone else. And while 20-some year old memos he's written are worrisome, these opinions, being two decades fresher, are proportionately comforting. In addition, liberal judicial theorists like Cass Sunstein and Lawrence Tribe all seem fairly comfortable with Roberts. Not their guy, maybe, but not a radical like Scalia or Thomas.

None of this promises Roberts won't wake up the day after confirmation, rip off his human costume, and reveal a firebreathing lizard man bent on crisping American jurisprudence ... He's not the sort of Judge I'd pick, but the honest truth is, he seems better than the sort of Judge I though Bush would pick.
I agree with that last sentence in particular.

Bitch Ph.D., on the other hand, isn't so sure:
After watching today's hearings, I have to say I'm not really reassured. It seems reassuring to have Roberts say that he believes Roe to be settled law, and that he doesn't think that disagreeing with the logic of a finding is just grounds for overturning a precedent; but holding out the possibility to overturn precedents because it has proven "unworkable," or, more importantly, because it has been "eroded" worries me a great deal. The fact is, Roe has been eroded over time, with parental notification laws, banning intact dilation and extraction, requiring women to undergo waiting periods, requiring them to be notified (untruthfully) that abortion causes health problems, and so on. So the "erosion" clause seems weasely to me, and I hope that the Judiciary Committee will press him harder on that tomorrow....
Meanwhile, some of the uber-wingnuts are feeling betrayed, like Joseph Farah from WorldNetDaily (HT: Discussion about 9/11) -
John Roberts still has most conservatives buffaloed.

They just can't believe George W. Bush would betray them so boldly.

But he has.

Even I, the ultimate skeptic, am just beginning to fathom the extent of the shell game that has been played on conservatives – most of whom are actively working on behalf of the confirmation of a new chief justice of the U.S. Supreme Court who will make Ruth Bader Ginsberg look like a moderate.

That's right.

Up until now, I've been comparing Roberts to Sandra Day O'Connor, Anthony Kennedy and David Souter. I've got news for you. He's worse.

That, according to his close friend Edward Lazarus. Here's what he has to say about the next chief justice:

..."Putting politics aside, the current court member Roberts most resembles is Stephen Breyer. Roberts is far more intellectual than Rehnquist, far more politic than Scalia, and – as noted above – far less extreme than Thomas."

Stephen Breyer. That's who Roberts most resembles, according to his friend.

Roberts is a Washington establishment operative who has been fooling conservatives for much of his life.

In 1981, he worked ... to fool President Reagan and the American people into thinking Sandra Day O'Connor was a "conservative," Reagan Republican. He was a plotter, a co-conspirator, a devious manipulator, a spinner.

...This is what conservatives got for all their hard work on behalf of George W. Bush – a betrayal. Conservatives were told they had nowhere else to go in the presidential election if they cared about the U.S. Supreme Court.

And what did they get? Not Souter. Not Kennedy. But Breyer.
I think that Farah might be missing the fact that the friend said: "Putting politics aside, " Roberts is like Breyer. But hey, nobody ever said Hooked On Phonics would work overnight.

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