After an unrelenting string of bad news, President Bush must
feel pretty good about getting his mojo back with the John Roberts
Supreme Court nomination.
After an unrelenting string of bad news, President Bush must feel pretty good about getting his mojo back with the John Roberts Supreme Court nomination.

Let’s take a quick stock of the recent controversies: Karl Rove’s involvement in the outing of undercover CIA agent Valerie Plame; the Downing Street memo, which suggested that intelligence was being “fixed” around a pro-war policy; soaring gas prices; a mounting death toll in Iraq; and, of course, Bush’s personal windmill: Social Security.

On my Political Richter Scale, the Roberts nomination scored a 6.0 – enough to wake you up and break some china, but short of calling out the National Guard. If a liberal judge were to retire and a true realignment on the court took place, that would rate a 7.0 – something like the Loma Prieta quake.

True realignment, the kind that might produce a political cataclysm – defined by most observers as the overturning of Roe v. Wade – is still one justice away.

Since Roe was last confirmed in 1992 on a 5-4 vote, anti-abortion justice Byron White has been replaced by Ruth Bader Ginsburg, a likely pro-Roe vote. With Sandra Day O’Connor, who voted in favor of Roe in 1992, being replaced by the likely anti-Roe Roberts, there remains a 5-4 pro-Roe majority on the court. Justice Kennedy, the other 5-4 swinger, is also a Roe supporter.

And that’s just fine for Republicans. Roberts was a freebie, an opportunity to swing the court rightward without overturning Roe. Legal abortion has been a key organizing issue for the GOP, allowing Republicans to introduce – and run for election on – one law after another limiting Roe’s scope. Two-thirds of Americans support making so-called “partial-birth abortions” illegal, for example, but two-thirds also support the right to an abortion. The Republican Party has been exploiting that math for a decade, riding it to majorities in both houses of Congress. Overturning Roe would spell the end of that dominance.

We don’t really know that much about Roberts, but the fact that the right is apoplectic with joy should be a sign. His sparse judicial background and Mr. Clean image – could Bush have found someone with a more boring name? – make him a virtual sure-bet for confirmation. President Bush’s real coup here was in disappointing those of us who were spoiling for a fight.

It leaves one wondering what those folks who voted for Bush reluctantly, and who held out hope he would nominate a moderate, are thinking today. Are they still giving him the benefit of the doubt, assuming that Roberts will not turn out to be so conservative after all? Such people have been whistling past the graveyard for the last four and a half years, and no doubt still are.

But a majority of Americans, according to recent spot polls, are not willing to take the president’s word on Roberts. They are not interested in his Harvard-heavy, inside-the-beltway resume. They want to know what he believes, where he stands on many things, including abortion. They are not likely to find out. Press as they might, Democrats on the Senate Judiciary committee are going to have a tough time getting him to come clean.

And that, to my mind, is what makes this nomination cynical. Bush picked someone whose nice-guy image will deflect scrutiny.

But we deserve to know. Roberts is only 50, and his decisions will affect me the rest of my life. Just because I’ll never get an abortion doesn’t mean it and a host of other issues are not important to me.

Roberts is certainly qualified for the court – but the best? The political calculation of this nomination begs many questions about those who were overlooked. O’Connor has praised Roberts while at the same time expressing disappointment that Bush did not choose a woman such as Judge Edith Clement, widely rumored to be the nominee until she turned out to be a decoy. Bush could also have chosen one of many Hispanics mentioned. And maybe, if he gets another appointment, he will. But if Roberts turns out to be Bush’s sole legacy on the court, he will have missed an opportunity to make a bolder stroke.

In that, the president chose to play it politically safe which is perhaps the biggest disappointment of all.

John Yewell is the city editor of the Hollister Free Lance.

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