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July 20, 2005
Editorial Response To Roberts Nomination: Stunned And Cautious

If George Bush wanted to set the media elite back on their heels with his first Supreme Court nomination, he succeeded brilliantly.

The selection of John Roberts appears to have stunned editorial writers in the four largest cities. Their entries today heralding this new judiciary battle show a healthy dose of caution and calls for a dignified process. Most of them tip their hat to Bush's political skills, noting the difficulty for Democrats to deal with the thin paper trail of Roberts, but still point out potential land mines for his confirmation.

The Washington Post gives Bush the most credit for a thoughtful selection:

IN NOMINATING Judge John G. Roberts Jr. to the Supreme Court, President Bush picked a man of substance and seriousness. Judge Roberts has served only briefly on the U.S. Court of Appeals for the D.C. Circuit, but he was previously among the country's best-regarded appellate lawyers, both in private practice and as deputy solicitor general during the administration of George H.W. Bush. Judge Roberts is a conservative, but he has never been an ideological crusader; he has admirers among liberals. If confirmed as the successor to Justice Sandra Day O'Connor, it is likely that he will shift the Supreme Court toward the right. But his nomination is not a provocation to Democrats -- as some other possible nominees would have been. Mr. Bush deserves credit for selecting someone with the potential to attract broad support.

Like most of these editorials, the Post notes Roberts' arguments on behalf of the Bush 41 administration against Roe v. Wade as one speed bump, and also mentions a Commerce Clause case that may give some big-government backers heartache about the potential narrowing of the reach of the federal bureaucracy. However, the Post castigates People for the American Way for its hyperbole and its unreasoned opposition in suggesting the nomination could be a "constitutional catastrophe". The Post also hails Harry Reid's moderate and calm reaction and expresses hope that the Senate can produce the dignified process we all want to see.

The New York Times does not share the Post's optimism. Picking up most of their talking points from Ted Kennedy's press release yesterday -- really, you should compare the two -- the editorial echoes the lament of Kennedy and Pat Leahy that Bush did not nominate another O'Connor. Although careful not to overtly oppose Roberts, the Times edges up about as close as it can to endorsing rejection without saying so:

The American people know little about Judge John Roberts, other than that President Bush is nominating him to fill Sandra Day O'Connor's seat on the Supreme Court. But in the coming weeks that should change. The Senate has a duty to scrutinize his background and to question him closely at his confirmation hearings about substantive areas of the law. If he is a mainstream conservative in the tradition of Justice O'Connor, he should be confirmed. But if on closer inspection he turns out to be an extreme ideologue with an agenda of stripping away important rights, he should not be.

The editorial then spends the rest of its time explaining why Roberts looks like the latter than the former, raising the spectre of an America powerless to stop air pollution, child labor abuse, and dangerous sweatshops. They also warn that Roberts' thin record on his judicial philosophy could hide a far-right drive to "resurrect ancient, and discredited, states' rights theories," a reference to the mythical and oh-so-creepy Constitution In Exile movement. And of course, the editorial mentions that Roberts opposed Roe.

But they don't oppose him. Yet.

The Chicago Tribune mostly stays neutral, starting off its editorial with a canned cliche about the importance of SCOTUS nominations. It then acknowledges that Bush took the time to select a nominee who is prepared to face the issues and young enough to serve a substantial time on the court:

Presidents have often appointed justices for passing political reasons, or even personal ones. But when it came time for George W. Bush to make his first nomination, he did something different: He looked for a distinguished lawyer with a mind to match the difficult issues the court must address and the youth to serve long enough to leave a substantial imprint. ...

Roberts, 50, is generally regarded as a solid conservative but not a hard-edged ideologue. His brief time as an appellate judge means he has written few opinions that might reveal his underlying judicial philosophy. While that may give the Republican Party's right wing some concern, it also leaves Democratic partisans with minimal ammunition against him. Anyone hoping to portray him as a dangerous extremist, as Robert Bork was caricatured in 1987, will have to be exceptionally creative.

The Tribune mostly focuses on the lack of controversy Roberts should create in his confirmation battle. It mentions Roe, but unlike the NYT, it also provides the context the Post gave in noting that he represented his client in that brief (Bush 41), not himself. Its conclusion expresses disappointment that Bush couldn't find a female or minority candidate -- the only one which makes that an issue, interestingly -- but concludes that Bush did pick an outstanding legal mind.

The Los Angeles Times, meanwhile, writes ... poorly. Easily the weakest of the four editorials, it meanders around, obviously ill-prepared to take a position on Roberts but lacking the consistent distance of the Tribune editorial. For instance, it raises the Roe issue and then presents the counterargument rather clumsily:

Much also will be made of a footnote in a legal brief he submitted as deputy solicitor general in 1991, saying that Roe vs. Wade "was wrongly decided and should be overruled." It is an undeniably disturbing assertion. But he can argue that he was merely arguing the position of his then-boss, President George H.W. Bush. (In fact, Roberts did make essentially this point in his confirmation hearings 12 years later.)

On the other hand, the LAT finds the two issues I think will likely be the biggest hurdles of his confirmation, apart from Roe: his membership in the Federalist Society and his recent vote upholding military tribunals for terrorist detainees at Gitmo and elsewhere. Given the recent histrionics in the Senate involving Gitmo, I expect the latter will give Democrats not just an opportunity to beat up Roberts, but to use him as a proxy to grandstand against the Bush administration on the war.

I suspect that as the hearings move forward, editorial boards will find what they need to take a more firm position on his confirmation. In the meantime, to varying extents, they have to sit on their hands and wait for the Judiciary Committee to do its job.

UPDATE: Welcome, Instapundit readers! The Alamo City Commander has more.

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Posted by Ed Morrissey at July 20, 2005 5:39 AM

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