From the WSJ Opinion Archives
THE NEXT JUSTICES
The Future Is Now
Today's debate over Roberts is really about Justice O'Connor's replacement.
One week after John Roberts's hearings ended and one day after the Judiciary Committee approved his nomination by a bipartisan vote of 13-5, the chief justice-designate is the object of two debates, one among liberals and one among conservatives. Each debate is very revealing, and each has the same concern: the president's next pick.
This week, 40 Washington left-wing special interest lobbyists marched into the U.S. Capitol to meet with the Senate Democratic leader, Harry Reid of Nevada. Was it to express sincere concern over Judge Roberts? No. Their demand was that the minority leader get as many "nay" votes on Mr. Roberts as possible. They knew he was unbeatable, but they wanted to send a message to the White House about the next nominee. Mr. Reid complied. He promptly announced that he would vote against Judge Roberts and then made clear that he would do it again if the president chose someone next time not approved by the big people who hold the strings. Even pro-Roberts liberal Democrats like Pat Leahy of Vermont and Russ Feingold of Wisconsin are just setting themselves up to vote against the next nominee.
The liberal debate is simple because, to put it bluntly, Democrats lost the 2004 election and then they lost the filibuster in May. Their debate is not over Judge Roberts's merits. In fact, even the best liberal opposition to Judge Roberts first concedes that he is excellent, and then it reveals its true concern: whether Chief Justice Roberts will rule their way on this or that. Often, the ideologue's goal is put in colorful language such as "He will turn back the clock." What liberals mean by that, of course, is that they fear that George W. Bush's nominee might move the clock at all beyond the hour at which they peaked, circa 1973.
Even so, liberals know that Judge Roberts will have been confirmed a week from now. They know that the fight is now all about the next nominee. They also know that they have only one approach left: to intimidate Mr. Bush and defeat him even before he makes the next selection.
Their aims are twofold: to get a less conservative nominee and to ensure that the president does not send someone up who will excite the widest possible spectrum of conservatives and unite them with blacks, Hispanics and religious swing voters--groups with which the GOP made inroads into Democratic turf in 2004 as never before.
There is another goal: to ensure that, if the president nominates a woman, she is their kind of woman. Remarkably, Justice Ruth Bader Ginsburg did some politicking on this point earlier this week. On Wednesday, Justice Ginsburg told an audience that she doesn't like the idea of being the only female justice on the U.S. Supreme Court, but that in replacing Justice Sandra Day O'Connor, "any woman will not do." There are "some women who might be appointed who would not advance human rights or women's rights." When she was counsel for the ACLU, Justice Ginsburg advocated that there was a constitutional right to prostitution and that the age of consent should be lowered to 12. With a "human rights" standard as high as that, Mr. Bush's job just got a whole lot tougher.
In contrast, the conservative debate this past week was more about John Roberts, but those who engaged were no less focused on the president's next pick. The truth is that for most conservatives Judge Roberts had us at "hello," if not at "umpire." But some of his answers invited a healthy debate among conservatives and libertarians who believe that no past precedent of the court is defensible if it contradicts the Constitution, and others who, like Judge Roberts, respect the very conservative doctrine of stability in law. Conservatives debated whether, in fact, Mr. Bush had satisfied his campaign promise to nominate someone along the spectrum of textualist to originalist, as represented by Justices Antonin Scalia and Clarence Thomas, or whether Judge Roberts was more like the late Chief Justice William Rehnquist.
Whether vocal or silent in their concern, most conservatives turned their heads this week in perfect unison to the White House, some expressing their hope, as Sen. Sam Brownback of Kansas did, that the next selection will have a consoling record for the president's friends, and that it will be again someone both brilliant and brave, and not a compromise on either attribute to please the president's foes.
Mr. Miranda, former counsel to Senate Majority Leader Bill Frist, is founder and chairman of the Third Branch Conference, a coalition of grassroots organizations following judicial issues. His column appears on Mondays, Wednesdays and Fridays.
