How Will the Left Oppose the Roberts Nomination as Chief Justice?

Ralph Kostant writes in with these thoughts about the Roberts nomination:
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Even while his Administration is under siege from the Main Stream Media and the Democrats over the Hurricane Katrina relief effort and the war in Iraq, George W. Bush shows that strain and stress have not dulled his political instincts. Besides being an excellent nomination on the merits, naming Judge John Roberts to replace the late William Rehnquist as Chief Justice of the Supreme Court virtually disarms the enemy before the confirmation battle has begun.

In the weeks since the initial nomination of Judge Roberts to the Supreme Court, the most cogent argument (and I am applying a very liberal and tolerant standard of cogency here) against his confirmation has been that President Bush should have named a “moderate” (meaning a liberal) jurist to replace the supposedly moderate Justice Sandra Day O’Connor. For example, in an August 31, 2005 opinion piece in the Los Angeles Times, Duke Law School Professor of Law Professor Erwin Chemerinsky warned that Judge Roberts would replace Justice O’Connor’s swing vote on the Left’s Holy Trinity of abortion, affirmative action and separation of church and state. One suspects, however, that Professor Chemerinsky would find anyone to the right of Lawrence Tribe to be unduly conservative.

[Of course, it is an indicator of how the nation’s politics have shifted to the right since 1964 (which I would mark as the high tide of liberalism in America) that Justice O’Connor would be considered by both the Left and the Christian Right to be a moderate. Never mind that Sandra Day O’Connor was an Arizona Republican and the natural-born political scion of Barry Goldwater. Even Senator Goldwater would be considered a moderate in the current political atmosphere. What typifies Goldwater conservatism, and now brands both him and Justice O’Connor as “moderates”, is their almost libertarian conviction that government interference in our private personal lives is as abhorrent as its interference in our businesses and with our property rights. However, I digress--that is a topic for another discussion.]

The argument that Judge Roberts was too conservative a replacement for Justice O’Connor is now moot. Judge Roberts will not replace the “moderate” Justice O’Connor, but rather her Stanford Law School classmate and former comrade-at-arms in Arizona politics, Chief Justice William Rehnquist. The Left has never tried to portray Justice Rehnquist as a moderate (although they prefer him to the twin Princes of Darkness, Justices Scalia and Thomas). While always acting with prudent regard for stare decisus (the principle that the Supreme Court should try to preserve stability and predictability in our system of law, by respecting its prior decisions), CJ Rehnquist regularly parted company with Justice O’Connor in cases involving abortion rights, affirmative action and establishment clause issues. President Bush is replacing a conservative Chief Justice with the very person that CJ Rehnquist considered to be his judicial disciple, in politics, style and judicial philosophy. To have chosen a “moderate” to replace CJ Rehnquist would have been to disturb the very status quo that the liberals have been arguing must be preserved.

Not that the Left will stop arguing that Judge Roberts is too conservative, but the shamelessness of the argument will be more fully displayed. The Left is really arguing against the result of the 2004 elections.

I fully expect the battle lines now to be drawn over the even more fallacious issue of Judge Robert’s supposed lack of judicial experience. Even setting aside the facts that he has now sat for two years on the Federal appellate bench, and that he may well have more experience as an advocate before the Supreme Court than any prior nominee in the nation’s history, one may easily hoist Lefties on their own petards, if they assert the lack-of-experience issue. The patron saint of Chief Justices, for the Liberal Left, is Earl Warren. At the time of his nomination as Chief Justice by President Eisenhower, he was the sitting Governor of California, and had utterly no judicial experience.

Ralph B. Kostant