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Jewish World Review July 25, 2005 / 18 Tammuz, 5765 Flailing and flummoxed on Roberts By Rich Lowry
http://www.JewishWorldReview.com |
How do you define "flummoxed"? That would be Sen. Chuck Schumer.
Or "flailing"? That would be Sen. Ted Kennedy. Or "desperate"? That
would be the array of left-wing activist groups from People For the
American Way to MoveOn.org. This cadre of desperately flailing
flummoxed anti-Bushies has been brought to their state of extreme
futility by the nomination to the Supreme Court of John Roberts, the
un-Borkable.
Borking was pioneered by Kennedy, of course, when Judge Robert
Bork was nominated to the court by President Reagan in 1987. It is a
practice that involves destroying conservative nominees in all-out
smear-fests. Eighteen years later, the right has a two-step
counter-strategy. First, find a nominee who has spent his career
avoiding provocations that would give would-be Borkers traction.
Then, unveil his nomination in a carefully prepared rollout with
gorgeous visuals and rigorously on-message advocates.
President Bush opponents have been picking at Roberts' record,
compiled as a deputy solicitor general in the first Bush
administration, as a private advocate and as a judge on the D.C.
Circuit Court of Appeals since 2003. They are finding little that is
usefully distortable.
One focus is his dissent in a 2003 case involving the Endangered
Species Act. He thought a three-judge panel of the D.C. court erred
in upholding the constitutionality of the law under the Commerce
Clause. Putting aside the details of the arroyo southwestern toad
involved in the case, Roberts thought the panel's decision ignored
recent federalism-friendly Supreme Court decisions in Lopez and
Morrison that limited the reach of the Commerce Clause. Those
decisions had been joined by Sandra Day O'Connor. Remember her?
She's the retiring justice who has been universally praised by
Democrats.
Even Kennedy argued that O'Connor represented "the mainstream of
conservative judicial thinking," and said "that is what the American
people are expecting" in her replacement. But that was all of three
weeks ago. Now, Kennedy regards Roberts' agreement with O'Connor on
the Commerce Clause with horror. He "can imagine few things worse
for our seniors, for the disabled, for workers and for families."
Critics have also targeted Roberts' briefs in abortion-related
cases from his time in the first Bush administration. One brief, in
the case of Rust v. Sullivan, repeated pro-forma language about Roe
v. Wade being wrongly decided and defended the constitutionality of
the so-called gag rule, which prevented family-planning
organizations receiving federal funds from discussing abortion. How
radical can this be when the Supreme Court sided with the
administration? And when even David Souter, the liberals' ideal of a
Republican-nominated "moderate," joined the majority opinion?
None of this is going to get Roberts' critics very far. They are
reduced to resorting to the french fry case. Washington, D.C., had a
policy of taking into custody minors who committed offenses in its
Metrorail stations. A 12-year-old girl was nabbed eating a french
fry and duly arrested. Roberts upheld the constitutionality of the
policy, not because he liked it, but because it wasn't
unconstitutional: "The question before us ... is not whether these
policies were a bad idea, but whether they violated the Fourth and
Fifth Amendments to the Constitution." It was a unanimous decision.
John Roberts will almost certainly pull the Supreme Court to the
right. But there is nothing that Democrats and outside groups will
be able to do to stop it, because Borking has met its match.
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© 2005 King Features Syndicate |
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