Thursday, July 21, 2005

Exposed as a fraudulent prognosticator just yesterday, I venture out from the beach again ...

So, how will the Roberts' nomination play out?

The bottom lines here are: 1) Barring unforeseen developments, he will be confirmed, probably with strong bipartisan support; and 2) The nastier and longer the fight over Judge Roberts, the more the Republicans are helped and the more the Democrats are hurt.

Here are the subplots:

Sense of Inevitability: Already the Demos are demoralized and appear to be going through the motions. The usual suspects are lining up demanding a fight -- NOW, NARAL, ACLU, PFAW, and other assorted bad acronym types. Yet, these same groups were preparing to do the same to the nondescript Edith Clement. And these types opposed David Souter, as well. And then provocateur extraordinaire Ann Coulter says he is Souter. This actually helps, too. I think Ann supported Souter with the rest of us dupes.

Marched to War: The Demos must fight, for their generals (the acronym types listed above) demand it. These are the people with the money, after all. These people run the Democrat Party. As long as the holy faith of the Left ... the ability to impose Roe v. Wade and other sacred doctrines upon the masses without input from the masses ... is on the line, then the Left must fight, even if it means certain defeat.

It's an Ambush: The nominee brought forward is known as a conservative from long-ago, from his four years of service for Ronald Reagan and his clerkship for Chief Justice William Rehnquist, one of the two dissenters in Roe. His conservatism was apparently formed at the tail end of Viet Nam as his Indiana sensibilities were jolted by Ho Chi Mihn supporters at Harvard. He has since gone on to become one of the greatest legal minds in the country, and there is ample evidence that Judge Roberts has gone out of his way to dust his own footprints and leave no possibility for himself to be "Borked". Recall that as a young lawyer he watched what happened to Judge Bork in 1987. It appears to me that he began to consider the possibility of serving on the Court in the early 80's. But he saw the "benefits" of a paper trail a few years later. Hence, no paper trail. The judge did, however, argue for the overruling of Roe in 1991 while representing the first Bush Administration. Yet, he can now accurately and fairly state that he was representing his client. He was nominated for the D.C. Circuit Court in 1991, and his nomination languished. Judge Roberts then circled back in 1994 to write a law review article and go out of his way to write the footnote about which Ann Coulter now complains -- wherein he cautioned his readers not to assume that the argument to overrule Roe was his own. I view this as very shrewd, indeed.

He has gone out of his way for many years to make friends wherever possible. All who know him like him, and his former liberal law firm and law school colleagues describe him as "very, very conservative." Apparently, Ann Coulter believes that being conservative means being despised by all liberals. This, however, is why she is a pundit and Judge Roberts is heading for the High Nine on the Potomac.

He is a genuine good guy, and he has been battle-tested by 39 oral arguments in front of the Supreme Court. This nerve-wracking exercise essentially consists of trying to make your case to nine of the best lawyers in the land while they pepper you with questions ... points ... counter-points. And then your adversary takes you apart, as well. Yet, Judge Roberts is regarded as the best Supreme Court advocate in the nation, by Justice Scalia and many others.

And he will be "grilled" by Schumer, Leahy, Durbin, and Kennedy? This will be child's play for him. Plus, he is likeable and reasonable. The longer that this debate/discussion goes on, particularly if Schumer misbehaves like he did in the 2003 Circuit Court hearings, it will become more and more of a disaster for the Demos.

He won't admit it, but ... He's pro-life. How do I know? Deductive reasoning. Catholic. Life-long contributor to Republican candidates. Wife is former Executive President of Feminists for Life. Wife's political contributions mirror his. Has two children ... ages 4 and 5 ... and both are adopted. Don't meet many people with adopted children, especially Catholics, who are pro-abortion. And he went out of his way to end his remarks when the President nominated him with a reference to his two kids ... "who are the reason why I am doing this." Very interesting comment.

Now, with all that said, I think he won't impose this view and rush in to overrule Roe. He has correctly said, as I would, that Roe is settled law. It is. He knows, however, that doesn't mean it will always be so. Depends on the facts of the particular case presented to him. He is an originalist. No question. Read his opinion in the french fry case, where Judge Roberts and the D.C. Circuit Court upheld a harsh D.C. ordinance wherein a 12-year-old was arrested, handcuffed and taken off like a common criminal for, yes, having french fry. Judge Roberts cited precedent to note that the proper way to evaluate the Fourth Amendment was to determine what amounted to an unlawful search and seizure when the Amendment was framed. Common sense, but a novel idea these days. But he found SC precedent to support it.

The Rehnquist Factor: I am convinced that the WH has coordinated its nomination of Judge Roberts with CJ Rehnquist. All parties know that a simultaneous Rehnquist retirement would have dramatically increased pressure for Pres. Bush to nominate a "moderate", whatever that is in constutional jurisprudence. Plus, the Demos would have certainly argued that a dual vacancy represented an "extraordinary circumstance". Now, the runway is clear. Once Roberts is confirmed, then the CJ will feel free to step down. Interestingly, the dynamic will have changed such that the WH can argue that it is certainly appropriate to nominate a clear conservative to replace the conservative CJ. Then, perhaps Roberts will slide over to chief as the WH nominates Edith Jones, or Michael Luttig, or Emilio Garza. It may be early enough in Roberts' tenure (the longer he is on the Court, the more it will be clear that he, Thomas, and Scalia will vote as a bloc) to contend that he may yet be a Souter. Rove and Co. have a master plan that looks dastardly for the oppostion. And ... if Stevens or Ginsburg step down (some say that this is a distinct possibility) then Demos will contend the Apocalypse is upon us. Or at least upon them.

Public Opinion and the '06 Elections: It is also strategically advantageous for the WH to have the more ideological, heated SC confirmation battle as close as possible to the '06 elections. Thus, the timing of the Rehnquist and O'Connor retirements is helpful. Make no mistake: Public opinion is with conservatives on the activist judiciary. Gay marriage, the Pledge of Allegiance, eminent domain, etc. are issues that resonate not just with true-blue conservatives like me. They resonate all over the country. And then you throw in abortion, the Ten Commandments, the SC's resorting to foreign law to strike down state criminal laws, and you've got most of the center and right siding with the Republicans in the battle over the judiciary.

With the 24/7 news cycle, too, conservatives have a golden opportunity to educate the public on what is at stake. And when the public sees the treatment afforded to Bush nominees by the likes of Schumer, Kennedy, et al., support for the nominees will grow.

The Republican base will be energized, and the defeat of any conservative nominee will only increase resolve going into the '06 elections. To the extent the Demos cause any problems at all in the confirmation process, the President will simply urge the election of more conservatives so that we can get more conservative judges confirmed. This is a winning issue going into the '06 elections.

Circling back to where we started ... all you need to know is Demos are already plotting how to lose the Roberts fight with dignity. And get this: Democrat senators are confiding that one of the things that made Roberts an acceptable "consensus" pick, if you will, was that his lack of a paper trail will give them their excuse to feed to their generals for their impending defeat.

But while the Demos are plotting how to lose with dignity, Bush, Rove and Co. are plotting how to win big.