Today’s Washington Post editorial on John Roberts, “Young Lawyer Roberts”, reviews the documentation released so far by the Bush White House on their Supreme Court Nominee — and finds that (surprise!) Roberts will not transform into the second coming of David Souter. However, beyond branding Roberts as an unabashed conservative, the Post doesn’t do much except excerpt passages from long-passed legal debates within the Reagan administration, passages that hardly show him as the reactionary that Democrats desperately want people to believe:
While it’s dangerous to make judgments based on a quick and necessarily spotty reading of quarter-century-old documents, the picture that emerges from the first wave of papers, including a huge batch unveiled from Judge Roberts’s tenure as an adviser to President Ronald Reagan’s attorney general, shows a lawyer fully in tune with the staunchly conservative legal views of the administration he was serving — and indeed, at times to the right of some of its leading conservative lawyers.
Those who fear or hope, depending on their political positions, that Judge Roberts might be a stealth nominee in the mold of Justice David H. Souter — a supposed conservative whose performance on the bench turned out to be far more moderate than predicted — will find no support for such predictions in the papers that have emerged so far.
It doesn’t take long for the Post to try to gin up a bogeyman, however, as it describes Roberts as “expressing hostility to affirmative action programs and to a broad application of the Voting Rights Act.” Expressing hostility? That’s editorial-speak for opposing interpretations of both not grounded in the law. The use of emotional language in describing Roberts’ position doesn’t appear accidental. The next sentence states that Congress should craft legislation that outlawed practices that did actual harm to minority voters in the proposed VRA instead of creating an amorphous, subjective standard of judging the “effect” of policies that would give courts wide latitude in arbitrarily creating new law through precedent. In short, he wanted Congress to write the law intelligently and clearly so that its interpretation and application could objectively apply regardless of which court ruled on it.
That doesn’t sound like hostility; it sounds like common sense.
Another point which disturbs the Post was Roberts’ objection to state prisoners using federal habeas corpus to file lawsuits. In 1981, that effort had tied up federal courts with a slew of ridiculous and inane court actions from inmates who literally had nothing better to do with their time than appear in court. It got them out of the prison yard and extra time at their facilities to prepare their cases. They mostly represented themselves or got pro bono representation, so it cost them nothing. Roberts made sensible arguments for curtailing the access, something the Post even acknowledges was needed — but then blames Roberts for “the high court and Congress hav[ing] since gone too far.”
So Roberts got Congress and the Supreme Court to go too far just by writing this one little memo? Is that what the Post wants us to believe?
The Post needs to rethink its approach to judicial criticism and quit issuing hysterical rants based on advisory memos, especially by applying emotional language where it doesn’t belong to juice up an exceedingly weak case. It should take heart in Roberts’ assistance to Sandra Day O’Connor in her confirmation process instead of treating it as an indication of some latent dishonesty, especially since the media has spent the last few weeks extolling O’Connor as a judicial saint. It won’t make any difference in the confirmation of John Roberts, but getting a grip would have a salutory effect on the Post’s credibility.