The town -- Washington, DC -- is emptying out, but there are groups of people whose vacation plans have been scotched by the nomination of John G. Roberts, Jr., for the Supreme Court vacancy created by the departure of Justice Sandra Day O'Connor. In anticipation of Senate Judiciary Committee hearings that will begin on Tuesday, September 6th, when the Senate returns from its August recess, and when the President puts down his pruning shears in Crawford and heads back to the Potomac, two "coalitions of the willing" are preparing themselves for a debate that has the potential to disintegrate into another of those divisive demonstrations characterized by demonization.
The hope is that this time the country -- the Senate, special interest groups, the media, and the President's men -- will conduct themselves in a manner that will make democrats, and not just Democrats, proud of their democracy.
August 6, 2005
August is a quiet month in Washington, DC, quieter than the waiting room in a Manhattan therapist’s office.
The Congress goes home; the President goes to the ranch; lobbyists kick off their Gucci’s and head for the Vineyard or Vail; the A List personalities in the press quickly escape to their favorite haunts; and intelligent design grinds to a halt in think tanks around town.
But this year, the quiet is interrupted by the muffled mustering of two militias – real coalitions of the willing – as they gear up for Senate Judiciary Committee hearings that begin on Tuesday, September 6th to consider the nomination of U. S. Appeals Court Judge, John G. Roberts, Jr., to fill the Supreme Court vacancy created by the unanticipated resignation of Justice Sandra Day O’Connor.
On the right: The Committee for Justice, a creation of Republican stalwarts to support their judicial nominations, joined by Focus on the Family, Family Research Council, Concerned Women for America, the Christian Coalition, American Center for Law and Justice, and others.
“Judge John Roberts has the keen intellect, impartiality and temperament, sound legal judgment and highest integrity necessary in a Supreme Court justice.
“He rules based on the application of existing laws and specific facts of the cases before him, rather than making new laws or creating new policies based on personal opinion.
“It's not surprising that The National Journal has said that ‘John Roberts seems a good bet to be the kind of judge we should all want to have all of us, that is, who are looking less for congenial ideologues than for professionals committed to the impartial application of the law.’” (Committee for Justice)
On the left: an assortment of public interest organizations, including Alliance for Justice, the newly-slimmed down AFL-CIO, MoveOn.org, NARAL, NOW, People for the American Way and on and on and on.
“Roberts’s record is a disturbing one . . . hostile to women’s reproductive freedom . . . taken positions in religious liberty and free speech cases that were detrimental to those fundamental rights . . . his short tenure as a judge raises serious concerns about his ideology and judicial philosophy . . . dissenting opinions by Roberts have questioned the constitutionality of the Endangered Species Act and argued that Americans tortured by Iraq when it was a terrorist state can receive no compensation. This preliminary review of Roberts’s record indicates that it falls far short of demonstrating the commitment to fundamental civil and constitutional rights that should be shown by a Supreme Court nominee.” (People for the American Way)
And, of course, the DNC and RNC – the respective national committees of the two major political parties, who will expend significant resources on this effort, if necessary.
Despite the early overheated rhetoric, the principal question before the country isn’t whether John Roberts is confirmed or rejected by the Senate. It is this:
Whether we have retained the capacity to conduct the democratic process of “advise and consent” without the demonization that is becoming customary in our public debate?
The answer is unclear, although not for lack of disturbing evidence.
Washington’s intifada shows no sign of abatement, and the President’s recess appointment of John Bolton didn’t help. Nor do the tinny protestations that Roberts is simply Bork minus the beard or the predisposition to beard. And the leadership of both coalitions includes men and women whose modus operandi is combative, contentious, and corrosive.
As the hearings approach, we have the usual “no litmus test” proclamations. But the truth is, everyone has one.
Some are issue-specific: e.g. abortion, affirmative action, death penalty.
“Then there's Roe v. Wade. People of goodwill can disagree about abortion, but overturning that decision would devastate the lives of women forced to bear unwanted children. Roberts has already argued, as deputy solicitor general, that ‘Roe was wrongly decided and should be overruled.’”((TomPaine.com, by Paul Loeb)
Some are about judicial philosophy: e.g., strict constructionist, judicial activist, pragmatist, ideologue.
“After President Bush announced his nomination of . . . Roberts, numerous media outlets repeated conservatives' characterization of him as a ‘strict constructionist.’ But those in the media who repeated this description of him neither questioned it nor provided any evidence to support it. In repeating the claim without comment, they echoed conservatives' misleading dichotomy between ‘strict constructionists’ and ‘judicial activists.’" (mediamatters.org)
Some are about demography: e.g., gender, ethnicity, religion.
“Judge John Roberts is a white male who has spent his entire adult life in Washington. Those facts themselves mean nothing, but they do beg a question: What could be so compelling about Judge Roberts as a Supreme Court candidate that the White House was willing to forswear all claims on ethnic diversity and all geographical political advantage, not to mention the express desire of Laura Bush and countless other women to see a nominee of their gender?” (The Nation)
Some are about process: e.g., which of Robert’s papers and records from government service should be made available? how much is enough? which are or should be protected?
“The Bush administration does not plan to turn over all the documents written by Supreme Court nominee John Roberts while he was a federal official, a White House adviser said Sunday, citing privacy concerns and precedent.
“Senate Democrats appearing on Sunday television talk shows challenged the White House view and indicated that a potential battle over Roberts' writings could be a flashpoint in his confirmation hearings later this summer.” (USA Today, Bill Nichols)
And some are about the nature of what’s legitimate inquiry and what’s not: e.g., his views on cases already decided? whether and how Catholicism might influence his decisions? whether his views about stare decisis will shift with his elevation to the highest court? whether the Constitution provides a fundamental right to privacy (good luck!).
“But if religion is to play a serious role in politics, believers have to accept the obligation to explain themselves publicly. That's why it would be helpful if Roberts gave an account of how (and whether) his religious convictions would affect his decisions as a justice. President Bush has spoken about the political implications of his faith. His nominee should not be afraid to do the same.” (E. J. Dionne, Washington Post)
No one – no one – comes to these hearings tabula rasa, and ultimately the battles are always about . . . litmus tests.
And this creates a competition between a litmus test -- about the candidate -- and an acid test – about the democratic process by which we chose them.
If you’d like to see a composite list of litmus tests, here’s the bill of particulars from a widely distributed “talking points memo,” prepared for supporters of the nomination, which highlights the case against Roberts. It directs supporters to “attack” nine charges:
Roberts is pro-life; a right-wing extremist; anti-environment; hostile to civil rights and affirmative actions; hostile to the rights of criminal defendants; hostile to the First Amendment's Establishment and Freedom of Speech Clauses; an "extremist" in the mold of Scalia and Thomas; consistently sides with corporations over unions and workers' rights; supports the Bush Administration's unparalleled secrecy.
Whew! Sounds like Roberts ought to be behind bars, instead of being a member of the Bar.
No matter your politics, John G. Roberts is as intellectually, temperamentally, and professionally fit for this office as any who have been nominated during the lifetime of this observer.
He is a conservative, a Catholic, married to a committed anti-abortionist, a product of his years in the Reagan and George H. W. Bush administrations, and, in all probability, someone who is apt to be more Rehnquist than O’Connor, and not a surprise like Souter or Warren.
Barring the unlikely revelations that he’s bent on repealing the 13th, 14th, and 15th amendments, or on the take from Big Oil or the Wise Use coalition, he comes without personal or professional tarnish, unless it can be manufactured like one presidential campaign organization demonstrated in the 2000 South Carolina primary.
So what’s the point?
Attempts to smear good people in the interest of winning a political battle – i.e., demonization -- debase democracy. And it matters not whether it comes from right or the left.
Demonization eliminates the center, the common ground in American politics. Democracies do not survive intact for long under such conditions. We are not talking about “dirty tricks” anymore; we are talking about “the end of history,” although not the kind envisioned by Hegel or Francis Fukuyama.
The country and candidate Roberts deserve better, and there is no time like the present to demonstrate that demonization has no place in the democratic debate.