Since July, the Senate Judiciary Committee has been studying
everything it could get its hands on bearing on the qualifications
— or, for the Dems, disqualifications — of John Roberts preparing
for the confirmation hearings on his nomination to be a side judge
on the Supreme Court. On Monday morning, the president announced he
was re-nominating Roberts as the new chief justice. Moving Roberts’
nomination up to chief was precisely the right move for two
reasons. A Roberts Court — which could be with us for the next
three decades — can restrain and roll back much of the judicial
activism that has been the most divisive force in American life. Of
equal importance, the president has just flushed the liberals from
cover for Americans to see them do their worst.
The Roberts nomination was frustrating liberals to the point of
distraction. To them, he’s a stealth conservative, one whose lack
of outspokenness gives his enemies no ammunition to shoot at him.
There is nothing in his qualifications or background to even
suggest that he is anything other than enormously well qualified to
serve on the high court. Before Chief Justice Rehnquist died last
weekend, the libs were resigned to making a show of a fight, and
then letting Roberts be confirmed. All that changed yesterday.
Informed court watchers anticipated Rehnquist leaving the court
before the end of this year. His thyroid cancer precluded any other
result. With Roberts probably confirmed before year’s end, the libs
were locked and loaded for a knock-down, drag-out filibustering
fight over the successor to the chief. If they let Roberts through,
they believed, they could mount a no-quarter battle on a new chief
justice who was identifiably conservative, and still pose as
reasonable. And weakened President Bush — his leadership
floundering in Iraq and under attack for the hurricane disaster
relief disaster — might be pressured into nominating a “moderate”
(i.e., liberal) chief justice. That strategy died with Chief
Justice Rehnquist.
Chief justices shape the courts they head, and lead in a very
real sense. And they hold administrative sway over all U.S. federal
courts. Thus the Roberts nomination will be doubly important and
the libs are already demanding a long delay to re-investigate him
for the more powerful post. It’s all baloney. There is no
difference in any criterion relevant to Senate confirmation between
the associate justice and chief justice positions. The confirmation
hearings, set to begin today, are certain to be postponed until
after Rehnquist is buried on Wednesday. The liberals will howl that
they need more time, and Republicans will grant them some, maybe
until late next week. They shouldn’t even get that much. But now,
they will have to make a real fight of it, and they will.
We already know one avenue of attack. Sen. Pat Leahy (D-Vt.) has
said he would demand answers from Roberts on the so-called
“Bybee torture memo,” written in August 2002 by
then Assistant AG Jay Bybee. Leahy, hoping to revive the whole Abu
Ghraib scandal, said he would demand answers from Roberts on the
memo’s broad view of presidential war powers. The memo — since
withdrawn by the Justice Department and replaced with another,
better-written one — is most famous for defining torture as only
the infliction of pain so severe that it would be at a “level that
would ordinarily be associated with a sufficiently serious physical
condition or injury such as death, organ failure, or serious
impairment of bodily functions…” Leahy wanted to tar Roberts with
a torturer’s brush. But Leahy’s real objective is to set up the
court to limit the president’s powers to conduct the war on
terror.
The Bybee memo says that any attempt to apply the criminal law
prohibiting torture “in a manner that interferes with the
president’s direction of such core war matters as the detention and
interrogation of enemy combatants…would be unconstitutional.” In
that, the Bybee memo is precisely correct. The Senate — led by
John McCain and Lindsey Graham (McCain lite) — wants to legislate
the methods and means by which terrorist prisoners who are not
entitled to the protections of the Geneva Conventions can be
treated while in American custody or in the custody of any power to
which they are transferred. That, as the Bybee memo anticipates
correctly, would be an unconstitutional limit on the president’s
Article II powers as the commander in chief. The courts, by
extending the writ of habeas corpus to terrorist prisoners held at
Guantanamo Bay, and preventing the transfer of them even to their
home countries where they may be mistreated, have already
unconstitutionally infringed on the president’s warmaking powers.
Leahy and the others want to ensure these infringements continue
and expand, regardless of the effect on the conduct of the war.
By elevating the Roberts nomination to the chief justice’s job,
the president has made the Roberts fight one the libs must win, and
they won’t. Roberts will be confirmed (probably not in time for the
first day of the court’s session next month), but soon after that.
And when the president nominates another conservative to replace
O’Connor, the libs will be fighting for their political lives.
There will be little or no room for them to maneuver around
their core constituencies. The NARALs, the PFAWs, and the rest will
be shrieking for a filibuster because they realize that with
Roberts, Thomas, and a third young conservative (Thomas is only
57), President Bush will be able to stock the Roberts Court with
enough conservatives to clearly deprive the libs of their last hold
on American government. Their hysteria will be palpable, their
rhetoric confused and destructive. There will be a filibuster,
unless the president does what they want and nominates a liberal.
Which he won’t do.
No Democrat — not even Slippary Hillary — will be able to
hide. Anyone who wants the allegiance of the hard-core left, and
any Democrat who expects to gain the presidency must have it, won’t
be able to take a tempered position. Every one of them will be
flushed from cover and revealed as the doctrinaire hyperliberals
they really are. There are already demands that the next nominee be
chosen on the basis of gender or race, or both. The president must
ignore the demands and the threats they imply, and choose a
conservative with a clear record of judicial restraint and
constitutional fealty. To do less will violate the trust placed in
him in the 2004 election by the Americans who turned out to vote
against judicially imposed liberalism. Tens of millions will be
spent, by Soros and the rest, to defeat the second conservative
nominee. There will be so many television ads non-Americans should
be forgiven for thinking the ‘08 presidential race will have
already begun. And it literally will have.
This fight should be liberalism’s last stand. Conservatives will
need to fight for any provably conservative nominee with that
focused constantly in their minds.
TAS contributing editor Jed Babbin is the author
of Inside the Asylum: Why the UN and Old Europe Are
Worse Than You Think (Regnery, 2004).
