Tuesday, September 13, 2005

Judge Roberts cruising to a Senate Approval

I predicted within a few hours of his nomination to replace Justice Sandra Day O’Connor that Judge John Roberts would sail through the confirmation process with 70-80 plus votes in the Senate [See here]. Now that he is the nominee to replace Chief Justice Rehnquist, I will stick with that prediction. Yesterday’s six minute statement by Roberts was picture perfect, making an easily understood analogy of justices to umpires, as opposed to players. It is an analogy with which his Democratic, liberal critics on the left, including presidential wanna bees and Senators Clinton, Kerry and Biden would like to quarrel, but will be politically uncomfortable doing so.

Those Senators may vote against Judge Roberts, realizing that it is necessary to appease their left leaning bases [especially for funding by the likes of George Soros] in the 2008 Democratic Presidential Primaries. Even Senator Bayh, who is certainly not a consistent liberal, may feel compelled to vote no on Judge Roberts in order to keep his Democratic Presidential Primary hopes alive. However, none of these Democratic Senators’ hearts will be in it and they well understand that if their opposition becomes too strident, it will hurt them in the general election, should any of them get the nomination. Advantage Roberts.

Of course, Democratic, liberal Senators such as Durbin, Schumer, Leahy and Kennedy [all on the Judiciary Committee] will have their hearts in the fight, but even they will know that Roberts' charming style, collegial demeanor, enormous intellect and qualifications and careful, articulate responses to questions make him a poor candidate for a Senate rejection. Advantage Roberts.

This morning, it was not yet 90 minutes into the hearings when Judge Roberts had trotted out Marbury v. Madison, the more than two hundred year old Supreme Court precedent [See here]. Marbury, as any Constitutional Law student would know, made it clear that the U. S. Supreme Court has the right to engage in judicial review of Congressional legislation and Executive actions to be the final word on what is Constitutional and the “Law of the land.”

The Judicial, Executive and Legislative branches of Government may be co-equal, but Marbury established that the Judicial branch is a little more equal than the other two. Nobody these days thinks Marbury is up for grabs. However, it was a way to remind all that Judge Roberts, as Chief Justice, would be protective of the Supreme Court’s appropriate role, if not the virtually unlimited role that is supported by many liberals.

Indeed, liberals in the Senate are upset with what they view as the too frequent action by the Supremes to strike down Congressional legislation as unconstitutional. However, the liberal Democratic Senators, after arguing so strenuously, of late, for an independent judiciary, do not want to criticize Roberts for supporting Marbury. Advantage Roberts.

Judge Roberts also handled Judiciary Committee Chairman Arlen Specter’s lead questioning on abortion and Roe v. Wade extremely well. He emphasized that even if a Supreme Court Justice believes that Roe was wrongly decided, that does not mean that that Justice should vote to reverse. There is a body of jurisprudence that a Judge must consider as to when such a case should be considered, as well as when, if ever, it is appropriate to reverse such a precedent.

Nina Tottenberg, NPR’s lefty court watcher, speaking on NPR during a morning Senate recess, took Judge Robert’s statement to mean he would not overturn Roe, which he did not say. Oddly, for Nina, she was helping a nominee who is generally considered to be quite a bit to the right of her left, liberal bias. Moreover, Nina was just plain wrong. Judge Roberts was making a subtle, but well understood argument that anyone familiar with Supreme Court jurisprudence should know. Nina didn’t seem to understand it or, inexplicably, chose to ignore it. However, that misunderstanding only helps the Roberts confirmation. Advantage Roberts.

Of course, Judge Roberts likely confirmation could turn on a dime. Senator Teddy Kennedy, who never really got past his 1969 actions and lack thereof in the death of a young woman at Chappaquiddick [See here], was given way too much freedom to interrupt and not allow the nominee to complete, and sometimes not even start his answer [not unlike certain TV political show hosts], as he bore down on voting rights issues. Senator Specter was slow to exercise his responsibilities as Chairman to make sure the nominee got a chance to respond.

But, Judge Roberts fans need not worry. Roberts handled Senator Kennedy, like the pro that he is. He didn’t fight with the senior and increasingly incoherent Senator and let Senator Kennedy interrupt him numerous times. Finally, Specter put his foot down, interceded and told Senator Kennedy to let the nominee answer his questions. If anybody watched that exchange, it only served to buttress the view that Judge Roberts has the right temperament and intellect to serve on the Supreme Court and that Senator Kennedy's time passed long ago. Advantage Roberts.

Liberals like Illinois' Senior Senator Dick Durbin and Junior Senator Barack Obama [who does not sit on the Judiciary Committee, but who has taught at the University of Chicago Law School and was the first African-American President of the Harvard Law Review] will continue to question Judge Robert’s “heart,” and whether he will, if confirmed, act to protect the rights of the poor, minorities and the downtrodden. Roberts will deflect that peculiar constitutional argument and instead remind them and others that as a Supreme Court justice, he would uphold constitutional rights for all, irrespective of race, class or position in society. Advantage Roberts.
Jeff Berkowitz, Host and Producer of Public Affairs and an Executive Recruiter doing Legal Search, can be reached at JBCG@aol.com