Wednesday, July 20, 2005

"It coulda been worse" -- what a resounding endorsement! 

Yale law professor Robert W. Gordon provides some initial reactions to Bush's supreme court nominee John Roberts:
Roberts is a very conservative nominee. Both business and social conservatives will support him strongly . . . his career locates him solidly on the far right of today's Court, the Rehnquist-Scalia-Thomas wing . . . All the indications are that he will become another vote to expand presidential power in national-security affairs, to limit the federal government's authority to regulate business and the environment and protect civil rights, to make it harder for women, minorities, labor and the disabled to pursue practical remedies in the courts, and to favor a larger role for religion in public life and as object of public subsidy. He is most likely to do this incrementally, case-by-case, rather than by sweeping new doctrines. My guess is that he would not vote to overrule Roe v. Wade but would sustain state efforts to chip away at abortion rights. On economic liberties, however, he might well be a more adventurous innovator. He wrote articles as a law student suggesting that courts use novel theories of the Takings and Contracts clauses of the Constitution to strike down state action affecting business (such as legislation creating new rights for workers). He has done advisory work for right-wing public-interest firms like the Washington Legal Foundation. He may well be a quiet but effective influence for the piecemeal demolition of the regulatory welfare state. Because his style is quiet and low-key, he is more likely to attract votes of fellow Justices than the inflammatory Scalia and the mediocre Thomas. Roberts will be very hard to challenge, because all Bush's choices were bound to be bad and this one could have been much worse.

Actually, maybe not. Sure, Bush could have pandered to the Christian Right by nominating Judge Roy Moore, but he, like Bolton, is such a controversial figure that he would never have been confirmed. A stealth conservative like Roberts will attract just enough Democratic support to be confirmed -- just in time to rule on these cases, and perhaps also on Rove's conviction.

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