Loose Canons

Roberts Rules of Order

A conservative Supreme Court is now a distinct possibility. This is a fight neither conservatives nor liberals can afford to lose. Sorry, Sen. Leahy.

By 9.6.05

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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).

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About the Author
Jed Babbin served as a Deputy Undersecretary of Defense under George H.W. Bush. He is the author of several bestselling books including Inside the Asylum and In the Words of Our Enemies. You can follow him on Twitter @jedbabbin.