By Richard Cohen
Thursday, July 21, 2005
Another hanging chad has dropped. His name is John G. Roberts Jr., and he undoubtedly will turn out to be opposed to abortion rights, affirmative action, an expansive view of federal powers and a reading of the Constitution that takes a properly suspicious view of the state's embrace of religion. In these and other matters -- the death penalty, for instance -- he is expected to substantially reflect the views of George W. Bush, the man who nominated him to the Supreme Court, because that was what the election of 2000 and its sequel were all about. You hang enough chads, and you get to change the Supreme Court.
My predictions on how Roberts will vote when he (almost certainly) gets to the court are not based on a close reading of his scholarly writings -- there are almost none -- or a parsing of his decisions as an appellate judge. It is based entirely on the supposition that Bush has taken the ideological measure of his nominee and has been assured by others that Roberts is a conservative, maybe deeply so. The White House in turn has passed that message to conservative groups. They all gave praise. "The president is a man of his word," said the very important Tony Perkins, president of the Family Research Council. "He promised to nominate someone along the lines of a Scalia or a Thomas, and that is exactly what he has done." God save us all.
Actually, the president has done no such thing. As opposed to Clarence Thomas, the oddest choice since the mad emperor Caligula proposed making his horse a consul of Rome, Roberts comes glittering with dazzling academic bona fides and, from a liberal perspective, seditious geniality. And, as opposed to Antonin Scalia, he has not managed to alert the opposition with ideological writings that are a joy to read and a fright to ponder. From what everyone is saying, had Roberts not chosen law, he would have made a dandy salesman. Everyone likes him. He sorely lacks the villainous aspect of the storied Robert Bork.
Bork's nomination fight is frequently cited nowadays, often by those who think a great injustice was done. Not so. What doomed Bork was what a Post editorial from the time (1987) called his "almost frightening detachment from . . . the real-world consequences of his views" -- particularly in the sensitive area of civil rights. It was with the utmost reluctance that The Post opposed Bork's nomination, even predicting that his rejection would "pave the way to a demagogic, highly politicized future where confirmation proceedings are concerned." Nonetheless, because Bork suggested that the law was more important than justice, the paper opposed him. So, ultimately, did a comfy majority of the Senate.
The reasoning of that editorial still makes sense to me. If, in the course of the Senate hearings, it becomes clear that Roberts, too, values brittle ideology over supple common sense, then the Democrats would be justified -- even obliged -- to put up a stiff fight. I suppose it can be argued, and I know it will, that abortion is one of those matters. It entails the aforementioned "real-world consequences" that are all too familiar -- consequences that the pro-choice people keenly appreciate and consequences that the antiabortion people feel no less passionately about. The Roe decision may by now be a matter of settled law, but the issue remains an open sore in the body politic.
But Roberts alone is not enough to reverse Roe v. Wade , and, anyway, a pro-choice nominee is just not in the cards. Most Americans support abortion rights. Still, I doubt that abortion is seen as the single most important issue in their lives -- insufficient reason for a scorched-earth response to the nomination. Abortion lacks the historical resonance of civil rights or, for that matter, a similar consensus.
Shortly after Sandra Day O'Connor tendered her resignation, I spoke to an important Democratic senator who confided that Bush was in a trap. I tried really hard to follow his logic, but it eluded me. It seems to me that it is the Democratic Party that has a problem. It can either come to terms with reality or appear, to much of the country, both petulant and in the grip of special interests, particularly the pro-choice lobby. In effect, the fate of this nominee was settled back in the year 2000 when Florida, for better or for worse, squinted hard and pronounced George W. Bush its winner. The chads have spoken.