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Liberals, pick another battle

THE HARSH overhead lights in the Senate hearing room were unkind to his bald spot, and by Day 2, his baby blues were visibly bloodshot. But John G. Roberts Jr. emerged from the Senate Judiciary Committee hearings as practically the only person who did not look like an ideologue or a blithering idiot.

His articulate courtesy stood in contrast to the bombast evidenced by both Democrats and Republicans on the committee. Roberts is going to be confirmed -- his past seems tediously devoid of the smallest peccadillo, and the American Bar Assn. has given him its highest rating -- yet our political process puts the guy through days of largely rhetorical questions. New York Democrat Charles Schumer, for instance, asked whether Roberts was “in the mold” of Antonin Scalia and Clarence Thomas, while Oklahoma Republican Tom Coburn wondered whether Roberts agreed “that the opposite of being dead is being alive.” Democracy in action!

Sure, there were some important questions that Roberts needed to be asked. Chief among them: Does he now hold all the uber-conservative views enshrined in the reams of memos he wrote when he was a young Reagan administration lawyer? Or were these memos, as one blogger suggested, “the Blondie albums of his legal catalog,” period pieces that reflect little more than Roberts’ youthful desire to shine in the eyes of his early bosses?

Roberts has answered that general question in a way that should satisfy those of us who wince at the thought of our own youthful effusions: “I was a 26-year-old staff lawyer,” he told Sen. Dianne Feinstein (D-Calif.) ruefully. In case anyone didn’t take the hint, he went on to praise Justice Robert Jackson, who, once on the court, “took an entirely different view of a lot of issues, in one famous case even disagreeing with one of his own prior opinions.”

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On substantive issues, Roberts gave answers that should be largely reassuring to liberals. Still, the official liberal response appears to be that we shouldn’t believe anything Roberts says because he’ll say anything to get confirmed.

The cynics have got hold of the wrong end of the stick. Think about it: Unless Roberts is captured on television kicking a wheelchair-bound hurricane victim, he’s going to be confirmed, and we knew this well before the hearings began. He had no particular incentive to make nice to the Democrats on the committee -- and he could have made far more stridently conservative statements, with little consequence.

Yet he chose, on the whole, to be conciliatory and nonconfrontational, making a surprising number of statements that even appeared to confound some on the far right. On religion, for instance, he told the committee, “I do not speak for my church on public matters and the church does not speak for me,” and he added that religious freedom protects nonbelievers as well as believers.

He said he regards Roe vs. Wade as “settled” law. Asked whether he’d overturn a precedent, he approvingly cited Casey vs. Planned Parenthood, which reaffirmed Roe, noting that it “explain[ed] when cases should be revisited and when they should not.” Pressed on end-of-life issues, he said the “right to be left alone is one of our basic rights” -- not a view embraced by those who were eager to maintain Terri Schiavo’s vegetative state against the evidence of her own wishes.

In his more recent actions, Roberts has also demonstrated that he’s capable of deviating from the right’s party line. He worked pro bono for a death row inmate; he gave free advice to gay rights advocates in Romer vs. Evans.

True, Roberts will never be a liberal’s dream chief justice. But did anyone expect President Bush to nominate Ted Kennedy to the court as a goodwill gesture to the people of Massachusetts? Like David Souter and Sandra Day O’Connor, Roberts could well turn out to be less conservative than expected once he’s on the bench. And he is probably less extreme than any of the alternatives waiting in the wings.

It’s a question of picking one’s battles. By waxing hysterical about Bush’s surprisingly non-horrendous court choice, liberal interest groups are only playing into the hands of the GOP right, which is always eager for opportunities to paint liberals as shrill, negative and out of touch with mainstream America.

Meanwhile, Iraq is spiraling into civil war, John Bolton is dismantling the United Nations and the window of opportunity created by Hurricane Katrina is fast closing. Liberals should stop whining about Roberts and get on with building a positive case for sweeping change at the polls.


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