Wednesday, July 20, 2005

The Next Supreme Court Justice?

by Kyle Michaelis
President Bush made his pick to replace retiring Supreme Court Justice Sandra Day O'Connor official last night, naming Judge John G. Roberts as his first nominee to the highest court in the land. Roberts' nomination now moves on to the Senate for confirmation, requiring a simple majority that seems likely barring any disastrous revelations during hearings by the Judicial Committee.

The word on the street is that Roberts is a "mainstream" conservative. The problem is that label doesn't say much. It leaves a whole lot of room for guess work on his views about abortion, states' rights, and the role of the federal government in regulating commerce. On abortion, he told the Senate during hearings to become a Federal Appeals Court Judge in 2003:
"Roe v. Wade is the settled law of the land. It's a little more than settled...There's nothing in my personal views that would prevent me from fully and faithfully applying that precedent."

That's all well and good, but there's going to be a lot of temptation to open up this unsettling can of worms again so long as there are votes to be squeezed out of it. Were Rowe v. Wade ever truly accepted as settled law - even in principle, not necessarily without restriction - the Republicans would lose their most salient bond with Christian voters. The question becomes whether or not Roberts will respect legal precedents even when he has the power to move beyond their interpretation and actually over-turn them, a question of far greater consequence than its application to the old Roe v. Wade debate in which the very fate of 70 years of social and economic progress hangs in the balance.

Roberts selection ends weeks of speculation yet comes earlier than expected. Most importantly for Nebraska's immediate purposes, it ends brief and somewhat silly local discussion that Sen. Ben Nelson may have been in the running. Though Nelson won't be joining the bench, however, there is still the possibility of his holding considerable say in the confirmation process - both as a decidedly non-partisan swing voter and as one of the de facto heads of the 14 member judicical pact in the Senate that could decide the fate of a highly unlikely filibuster of Roberts' nomination.

Last week, the Lincoln Journal-Star reported:
Sen. Ben Nelson said Thursday the coalition remains intact and available as "a safety net"....

"We are hoping the process will work without our involvement," he said. "We would like nothing more than to become unnecessary"....

Nelson said Bush's efforts to reach out to senators from both parties seeking their advice in advance of his Supreme Court nomination may be an indication that he "most likely will choose someone who won't even raise the question of extraordinary circumstances"....

If the process breaks down, Nelson said, the coalition of 14 senators remains available to prevent "any imploding of the Senate that might occur."

Nelson said he's hopeful the president will "come up with a nominee more in the mainstream, somebody who is not going to be a judicial activist."

Already, he said, the bipartisan coalition may have had an effect by calling upon Bush to recognize the Senate's constitutional authority to provide advice as well as require its consent.

So, Nelson seems content, although he was speaking when it seemed Bush would allow for more input from Senate leaders before making his choice. I guess even minor overtures of giving a damn what others think are good enough. Still, with Roberts' appartently uncontroversial past and the relative ease with which he was already once confirmed to a lower court, it seems unlikely Nelson would even consider voting against him.

Of course, that won't stop special-interest groups from trying to pressure Nelson on both fronts, even if it's only to emphasize that he has a "D" by his name before the 2006 election. Say what groups will of this being about some hypocritical idea of religious freedom or nonsense notion of "judicial activism" - at the end of the day, for most of the players on the board - this is politics. Pure and simple. Sad but true.


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