The Roberts Head Fake

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Hugh Hewitt:

“Time will tell, of course, but for all the reasons already stated, I think it will tell that, once again, President Bush was misunderestimated all the way to the political bank.”

Michael Barone:

“Conservatives have been frustrated that over the past 30 years—in which seven of the nine justices have been appointed by Republican presidents—that mainstream has changed little. The confirmation of John Roberts will move the court a significant distance in their direction.”

William Kristol:

“WITH THE SUPREME COURT PICK of John Roberts, George W. Bush rose to the occasion”

Confirm Them:

“to the extent that any American outside the Washington Beltway contemplated what they wanted in a new Supreme Court justice, it’s a safe bet that they would say: 'the best.'

That’s precisely what President Bush has given us with his nomination of Judge John G. Roberts, Jr., to be the next Associate Justice of the Supreme Court.”


OK, you get the idea. John Roberts has a lot of support from some pretty high-powered Conservatives, including the one that really counts: George W. Bush. All right, I hear the yakking; what about Souter, what about O’Connor, what about Kennedy? Yep, I know about them, but if you look deeper, you will see some key differences.

First off, let’s not forget the conditions each President faced. Reagan and Bush I had to get their nominees past a Democrat-controlled Senate, which meant they had to pick candidates that not only did not show a clear Conservative paper trail, they ought to have something liberals found a little bit attractive. Also, think about it; knowing what we know about Roberts already, is there anyone here who thinks the Left would have allowed a John Roberts to be confirmed by the Senate as it existed in 1983, 1986, or 1989? Dubya knew the kind of conditions the Senate is in right now, and Roberts was selected by Bush because of those conditions. More on that in a moment.

Next, look at who supported the nominees. In the case of Souter, for instance, the voucher came from John Sununu, mainly. Now, Sununu’s not a bad sort compared to some I can think of, but he’s a New England Republican, which in some aspects is about as reasonable a term as calling someone a New England cowboy; a bit silly. In the case of Roberts, his support comes from a lot of serious Red State/Red Meat Republicans. What’s more, everything we can confirm about Roberts tracks with the perception that he is not only Conservative, but serious about it. More to the point, his work reveals a serious Originalist, which is really what the SCOTUS needs.

Now, back to the context. Personally, I believe the 2000 Presidential Election opened up some eyes on the High Court, and while the Justices keep a lot of things to themselves, it wouldn’t surprise me to find out many years from now that the President got wind of a few things, like a rough idea of who might retire. In an earlier post, I speculated about who might retire and why, but I was hardly the first or the boldest predictor of possible openings. It’s not hard, once one realizes just how long the present Justices have been sitting on the SCOTUS, to realize that a general change of cast is not far off, and since the Democrats are increasingly determined to keep the Senate and the White House in GOP custody, Justices might well be scheduling departures sooner rather than later.

With that in mind, one might wonder why Rehnquist did not resign this summer? Why indeed? The man is entitled to his own counsel, to be sure, and it’s certainly possible that vanity plays its part in chasing the record, but the plain fact is, after this summer there will be three more where President Bush is still in office, and with the Senate looking to stay as Red or Redder than it is now (provided Senator Santorum’s recent verbal gaffes don’t become the common lingua franca by Republicans), it’s not unrealistic to examine the conditions a SCOTUS nominee would face in each of those years. Next summer, of course, is right before the Midterm elections, and if Ginsburg is going to jump, that would be the best time, where she can hope for political pressure to put in a moderate as well. I have already said that I suspect Rehnquist plans to go next summer, and will try to talk Ruth Bader into accompanying him on that last parade. And I wouldn’t be surprised to see as many as three (three!) additional Justices step down in the summer of 2008, although I actually expect just 2 more to go then. But 5 to 6 SCOTUS Justices to be appointed by Dubya in the space of 4 summers would absolutely set off the Screaming Slander Monkey contingent, and clearly the best campaign prepares in advance for that. At that time, it won’t matter who Bush nominates, the Left will be dead set against them, and will throw up a complete and total ‘scorched-earth’ policy of denial and attacks. Strange as it may sound, now is really the only chance for a judge like Roberts to get confirmed, as in the high-pressure environment of addressing simultaneous multiple SCOTUS picks, the Right and Left will each demand a pedigree of absolute confidence. The Left will end up getting nuked, no matter what happens, but will definitely play up some sort of scandal lie (a la Anita Hill) to do what damage they can. The best riposte is to throw them off guard. And this is why Roberts was such a smart choice. If Bush had sent up a ‘moderate’, he’s smart enough to know he’d be throwing away an Ace card. If he had sent up a Luttig or Owens, he would have precipitated just what the Donks expected. Instead, he had the chance to make sure of his choice, and when the time was right, toss in a couple head fakes (word is, Judge Jones’ family was together in Washington when the White House called the conference to announce Bush would name his choice - heh) and give ‘em the curveball. Bush took longer than people think to select Roberts, and I suspect he already has the next few choices ready, with regular updates.

So, the Democrats can’t decide whether or not they want to use their one-bullet filibuster gun now or later. And there’s no reason to think, now I consider it, that so long as he knows what he is getting, that President Bush has any reason or motivation to give the Democrats any chance at all to prepare for the next time. It will happen when it happens, and like a certain speech said: “… at a time of our choosing”.