Wayne M. O'Leary

At Sea with Mr. Roberts

The nomination and presumed easy confirmation of John G. Roberts Jr. for Supreme Court justice says a lot about the state of American politics as George W. Bush proceeds on his merry way to remake the country in a conservative image.

Everybody in Washington (the Republicans, the Democrats, the media) loves Mr. Roberts; he's pleasant, cordial, polite and has a nice family -- just the sort of person who will fit comfortably into the capital city's cocktail party circuit. The fact that he is also a former corporate lawyer and, to all appearances, a right-wing conservative makes no substantive difference.

The political class has issued advance warning to those concerned, including interest groups and party activists, that criticizing the new nominee's deepest-held beliefs is beyond the pale; his philosophical bent is nobody's business. All establishment Washington asks is for somebody who is properly credentialed and not "ideological," that is, not overly nasty or aggressive in the Scalia mold when pushing his judicial agenda.

Senate Democrats seem almost relieved that Roberts' all-American persona (he's a kind of hard-right Henry Fonda) will absolve them from challenging him. Equally pertinent, he's intelligent, and after Bork, cerebral conservatives get a pass. Roberts is also well schooled in the law; where he comes out decisionwise is immaterial, so long as his historical precedents and legal citations are in order.

The only apparent legitimate bases for opposing a contemporary conservative court nominee -- any liberal nominee would be violently resisted as such, of course -- are rank stupidity (the Carswell test) and moral turpitude. Roberts is smart and clean, so he's as good as confirmed; he's also likable and connected, so he'll be approved overwhelmingly. Hand it to Bush and the Republicans; they know how to work the system, and they can play the Democrats like a violin.

The loyal opposition has been convinced, or has convinced itself, that the most important attribute for a high-court justice is "judicial temperament," a sterling quality that leads its possessors to base their pristine rulings on purely objective notions of right and wrong, rather than subjectively partisan conceptions of left and right. In addition, the minority has persuaded itself that such a temperament can be divined by a nominee's manner. Roberts, affable and forthcoming, couldn't possibly be partisan.

The most notorious court case of the past generation, Bush v. Gore in 2000, should have taught the opposite lesson of just how rare truly disinterested judicial temperament is and how tenuous an impact it has in times of national crisis. When push came to shove in that instance, the Rehnquist Court, including revered linchpin Sandra Day O'Connor, proved itself partisan to the core; it picked the president it wanted for philosophical reasons, and then twisted itself into legal contortions to create a plausible rationalization.

There have no doubt been justices whose views of constitutionality precluded crass considerations of politics; some may even be sitting on the present high court bench. But history is filled with many more who viewed constitutional law as an extension of politics, the best examples being the "nine old men" who frustrated FDR's New Deal in the early-to-mid 1930s.

Today's Republicans clearly appreciate the uses of judicial politics, and they plan to employ appointments to the Supreme Court to establish and entrench the conservative agenda, while delegitimizing and reversing the liberal rulings of the past several decades.

Democrats, in contrast, seem unaware this is even happening, except for the high-profile threat to legalized abortion. Approving Roberts quickly and getting back to the exploitable agonies of Karl Rove is their apparent game plan, one that avoids considering the long-range ramifications. As long as a "moderate" judicial appointment allows Roe v. Wade to survive, Democrats believe, all is well with the Court. And John Roberts appears, on the surface, to be moderate, if conservative.

Yet look where a moderate-conservative Supreme Court, built by bipartisanship, has gotten the country. During its last term, led by its so-called moderates, the high court delivered two of the worst decisions of modern times. In Kelo v. City of New London, it upheld the right of local governments to seize private homes under eminent domain for the profit making benefit of corporate economic interests; in Gonzales et al. v. Raich et al., it struck down California's referendum-approved medical-marijuana law. The first case punished average homeowners; the second abused defenseless sick people.

On the other hand, corporate business has done quite well under this same moderate-conservative Supreme Court, as typified by the precedent setting 2003 decision overturning a $145 million punitive jury award against State Farm Insurance Co. and setting radically lower compensatory guidelines.

Let's establish once and for all that the moderates on the Rehnquist Court, who are usually labeled the "liberal wing," are not liberals at all; there have been no genuine, dyed-in-the-wool liberal justices on the Court since the halcyon days of William J. Brennan and Thurgood Marshall, and that includes the two Clinton picks, Ginsburg and Breyer. What we have on the current bench are moderate conservatives and extreme conservatives, and since 1990, the vast bulk of their decisions have fallen, to one degree or another, right of center. Departing Reagan appointee O'Connor, for instance, the Court's supposed moderate swing vote, has been a career-long supporter of business interests, especially in cases involving damage claims against corporations. She also supported the Republican side in Bush v. Gore and has lined up with hard right conservatives Rehnquist, Scalia and Thomas much of the time.

What this should tell progressive Court watchers is that belief systems usually play out predictably over judicial careers, and legacy-conscious presidents always take them into account. Since appointment-making chief executives have recently all come from the center-right of the political spectrum, moreover, the selection process has become dangerously lopsided; one conservative after another has been tapped for the high court.

That being the case, liberal Democratic senators should have no compunctions about evaluating potential Supreme Court justices not just on their characters, but on their perceived political philosophies or ideological inclinations. Whether they admit it or not, most nominees do have an ideology. Republicans know this and act accordingly. It's time for Democrats to shelve the nonpartisan nonsense and treat seats on the nation's highest bench as what they fundamentally are: lifetime political appointments.

Wayne O'Leary is a writer in Orono, Maine.

From The Progressive Populist, Sept. 15, 2005

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