Friday, July 22, 2005

 

The Dread Pirate Roberts

My favorite line about the Supreme Court nominee, Judge John Roberts, is from The Daily Show:
After all the speculation about naming a woman or minority, President Bush has nominated a white guy. He's very white. If he came in a box, it would be labeled: "contents: one white guy."
A Supreme Court nomination is a time when professors of constitutional law get to step out from under our rocks and into a bit of limelight. But, while we are well qualified to correct certain technical misapprehensions about how the Court works or what precise issues it is deciding, we really don't know much more than anyone else about the answer to the question everyone wants to know. We can't really predict what kind of justice he'll be.

I mean, he'll be conservative, but how conservative?

It's more fun to speculate about whether he's really a closeted gay man (see here and here). When I mentioned to B that one of the most compelling pieces of evidence on that subject was that he played "Peppermint Patty" in the school production of You're a Good Man Charlie Brown, the following dialogue ensued:
B: Oh, come on. It was an all boys school! Who else was going to play Peppermint Patty?
Oscar: Um... some other gay guy?
Althouse says that the Roberts nomination shows little "w" distinguishing his presidency from his father's because he didn't engage in tokenism by replacing O'Connor with a woman jurist (in contrast to Bush, Sr. who named Clarence Thomas to replace Thurgood Marshall.) There's a superficial similarity to Bush Sr.'s other nomination, David Souter, a man with a somewhat inscrutable political track record who's "lifestyle" (unmarried middle aged man living with his mother) also prompted "he's gay" speculation.

But it would be foolish to think that Roberts could turn out to be as liberal as Souter. One big difference between then and now is that The Federalist Society machinery has reached maturity -- alumni of this well-organized, well-funded conservative law student organization are now far enough along to run things -- and they are in a position to give a thorough vetting to judicial nominees. I don't think they had as much influence in the senior Bush administration; in any event, David Souter was not their guy. As a protege of G.H.W. Bush's top advisor, John Sununu, Souter was outside "the system" and essentially leapfrogged over the Federalist Society vetting machinery.

For me, the real question about Roberts is whether his nomination came from "within the system" -- was he proposed by Federalist Society types, is he one of them -- and it looks like the answer is yes. His track record as a justice department litigator, as a point man to argue the positions that recent Republican administrations have taken to appease the religious right, point in this direction.

The only hope for us liberals is that Roberts has been cagily angling for this Supreme Court job his whole professional life: In other words, that his litigation stances and lower court decisions have been designed to express views consistent with those who would nominate him to the high court, and that he has kept his own (hoped for) more moderate views in the background.

To describe that scenario as "hope" sort of makes me sick.

Yet it's hard for me to get worked up about the Roberts nomination because, let's not forget, this is only the first year of Bush's second term. Rehnquist will retire shortly after this confirmation process, and Bush will get to refresh that conservative seat with younger blood. And unless John Paul Stevens can hang onto his job until 2008, which seems unlikely, Bush will be able to replace that liberal vote with a conservative one.

So I'm afraid that the good ship "Hope" sailed last November.

***

Comments:
7 out of the last 10 presidential terms have had Repubs in office. The Senate has gone from large 'filibuster-proof' majorities of Democrats to a Republican majority over the last 40 years - yet, only 3 judges on the court are conservatives. Stevens and Souter went the other way, and Kennedy and O'Connor are/were wavy. Whatever way you cut the bologna, the Supreme Court should be more conservative than it actually is, and personally I'm looking forward to it (even though I have nothing to do with the religious right).

As far as the gay rumors, if they are true, isn't this something that we should embrace rather than ridicule or make fun of? Sure, the Pres and some Republicans are not very supportive of gay people, but there are plenty of gay conservatives and they have a right to have whatever political philosophies they want, regardless of where the party stands.
 
I'm so glad you're pleased about the direction of the Court, Bryan. Why don't you just enjoy it without having to make pseudo "objective" statements about how "not conservative" the current court is?

From my point of view, the court is already pretty darn conservative. On the Kinsey scale, if Scalia and Thomas are "6" (most conservative) then O'Connor and Kennedy "waver" between 4.5 and 5.5. The so-called liberal wing, in my view, is pretty much at 3. Stevens has always rightly said that it's a sorry joke that he is "the most liberal justice" since he's so close to the
political center.

As for the gay rumors, what exactly do you think we should "embrace"? If Roberts really is gay (and I don't buy into that speculation), it would be ironic that he owes his appointment to the biggest homophobic voting bloc in our nation's history. And anyway what's so great about being in the closet? I agree that there are conservative gays, and yes it's a free country, but at some point the "strange bedfellows" approach to politics crosses the line into "sleeping with the enemy."
 
I seriously question that the current Republican party is the most homophobic voting bloc in our nation's history. A lot of ground has been gained just in the last 50 years, and certainly in the past 200 years. Things will continue to get better.

Oh yeah... was John Kerry in favor of gay marriage? What about Hillary Clinton? or Bill Clinton? No, no, and no. I wouldn't really call the Repubs strange bedfellows that much more than the Dems, given some of their leaders' stances.

I apologize for not being objective, please edit my first comment to include IMO after sentence 2, 3, 4, 5 and 6.
 
I'm not saying the country as a whole is more homophobic than it was in the past. What I'm saying is that 2004 is the first election in our nation's history that was probably decided by an explicitly anti-gay voting bloc. (Possibly 2000 was too, but the beneficiary is the same guy.) I'm not making that up -- it was the pretty overt Karl Rove strategy to mobilize the 4 million Christian coalition stay-at-homes from 2000 by getting gay marriage on key state ballots.
 
Okay. I agree a little bit. But I'll help things change.

As far as the stuff about 'what's so great about being in the closet' - this coming from an anonymous blogger? :)
 
Bryan, I'm glad you think the current court isn't particularly conservative, and I hope that comforts you when your house is taken over by a rich friend of a local politician because he wants to build a hotel on your land.
 
Please don't goad Bryan... he was about to extricate himself from this dialogue.
 
WTF, IMO?? The conservative members of the court were the ones protecting property rights. The liberal 4 (IMO) and Kennedy were the ones who think it's okay for Wal-Mart to plow down your house, so long as the property tax value of the land increases. Wendy, I don't understand your comment in the least bit.

Oscar, if you don't want me to comment here, just drop me a line. I'd be happy to let you enjoy the echo chamber.... I might be blunt and argumentative, but I think I've been polite... no?
 
Bryan: I was trying to be funny. Your comments are always welcome here.
 
Oscar,

OnStevens saying he's a moderate (many, if not most liberals *and conservatives* do the same), why should we give credence to his own self-perception?

I think that if you took the positions he has taken as a jurist, and took the courts out of the equation and ran on those positions as a candidate, he'd probably come out to the left of nearly every member of the current Senate, with possibly a small handful of exceptions.
 
"I think that if you took the positions he has taken as a jurist, and took the courts out of the equation and ran on those positions as a candidate, he'd probably come out to the left of nearly every member of the current Senate, with possibly a small handful of exceptions."

Well, that may be true, though that seems a little exaggerated. However, keep in mind that "moderate" need not correspond to the "middle," as it were. American political culture -- even legal culture -- has been drifting ever-rightward since Stevens was confirmed. Can one really imagine the whole "emanating penumbras" voodoo carrying any water with the current Supreme Court? Or even imagine the current Supreme Court implementing a novel "strict scrutiny" equal protection category?

When Stevens took office, I think he *was* pretty much a moderate, perhaps a little more conservative than the mainstream in some ways -- I recall he used to oppose affirmative action, for example. If that's his perspective, then he may still see himself as a moderate, and the country as having moved rightward. Which it has, very much.

I suppose this lines up pretty well with what you note about everyone thinking they're the moderates. But in Stevens' case, I think there's some real historical substance to the claim. He just hasn't kept pace with society as it's moved on these past few decades.
 
I thought the funniest joke on that "Daily Show" segment was (in answer to the question what the liberals reaction to the announcement was): "Liberals were outraged. They have been for weeks."
 
And on a lighter note than pure south carolina lawyer , check out the funniest trial transcript ever! If it's not serious enough of a topic, well, just pretend it's the Brit's version of south carolina lawyer !
 
Help Mommy, there are Liberals! underneath my bed!!! (No, seriously, that's the name of the book...) Don't believe me? The dang thing's on Amazon, not some hippie-press bullcrap ;) Anyway, thought you might enjoy, pinko ;)
 
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