Friday, September 30, 2005

Roberts confirmation

The BBC’s Clive Myrie today has a report on the confirmation of John Roberts to the seat of Chief Justice on the Supreme Court. The article is mostly reasonable enough, with no particularly overt slant. But I think it shows a certain degree of naivete towards, if not ignorance of, the goings-on in Washington. Myrie writes:
But Mr Roberts is not an ideologue, as he stressed convincingly in his confirmation hearings.

Yes, he is conservative enough to please Mr Bush's political base, but not so right-wing that he offends most Senate Democrats.

That is why his confirmation was so convincing by 78 votes to 22.
This is naive. First of all, precisely how “right-wing” Roberts actually is remains to be seen. The confirmation hearings will have done nothing to shed any light at all on how he will rule on any significant matter that might come before the courts. Indeed, given the politicization of the Court and nomination process over the last 20 years, one of the primary strategies of any nominee is to be as obscure and evasive about potential decisions as humanly possible. Even better if the nominee can do so without appearing to do so. At this Roberts was particularly good, suckering those who would want him to rule one way into believing he said one thing, and those who would want him to rule another into thinking he said the opposite. And if there is any doubt about the trouble with predicting how a nominee might turn out, simply look to David Souter, who was nominated by Republican George H.W. Bush and is now the foundation on which the Court’s liberal voting block is built.

Second, the idea that it takes an especially “right-wing” nominee to offend Democrats gives the Dems far too much credit as moderates. Roberts benefited not from actually being moderately conservative (although he might be), but rather from the Dems inability to paint him as something else, regardless of what he actually is. This, combined with the fact that the Senate Dems from red states do not want to go the way of their voter-retired former leader, did much more, I suspect, to earn Roberts a healthy win than anything else.

Myrie also simply gets facts wrong.
A hard-right nominee would see a messy and bitter confirmation battle and possibly the use of the infamous "nuclear option", where Democrats filibuster debate on the nominee to the point where the nomination has to be thrown out.
Wrong. The “nuclear option” does not refer to Democratic filibusters. It refers to the potential Republican response to a filibuster, which would entail changing Senate rules to make a minority-led filibuster on judicial nominations procedurally impossible.

This is a small point, I know. But it is a pretty basic fact with which anyone who has been following the judicial battles in Washington over the last year ought to be familiar. That Myrie is not suggests to me that he is perhaps not the best person for the BBC to have providing analysis on the import of on-going Supreme Court nominations.


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