Monday, September 05, 2005

Why bother nominating judges when the New York Times knows the decisions that judges should be making in the first place?

From yesterday's New York Times, (registration required)here are the "important questions" that John Roberts needs to answer. Keep in mind, this is from Sunday's Times, before the announcement was made that Roberts was up for Chief Justice. The Times explains their concern about Roberts in the very first paragraph of the editorial.

Consider Sandra Day O'Connor, who in a series of 5-to-4 decisions cast the deciding vote holding: (1) that the federal government has broad power under the Clean Air Act to fight air pollution; (2) that states cannot impose new restrictions on abortion rights; (3) that courthouses cannot post the Ten Commandments; and (4) that the McCain-Feingold campaign finance law is constitutional. John Roberts, the appeals court judge who is President Bush's nominee to replace Justice O'Connor, could have an equally powerful influence. As far as we know right now, he could wipe away all of these rulings and many more.

At least the Times is honest. Given the fact that these are all 5-4 rulings, we can probably assume that both sides of the opinion are Constitutionally defensible in some regard. So the Times's concern is that Roberts may sway the Court in the opposite direction, reaching results the paper's editorial staff is not happy with. Luckily we don't reject judges just because we disagree with the results they've reached. If that is what we did, no judge would ever be approved.

It will be interesting to see the Times's response to Roberts being nominated for the job of Chief Justice. I suppose a knee-jerk opposition wouldn't be out of the question, but is there really any point to such a reaction?

After all, who else would you rather have named Chief Justice? Of the sitting justices, the only two whom Bush would probably seriously consider are Antonin Scalia and Clarence Thomas, neither of whom are inspiring choices. Both are highly opinionated, with a tendency to write solo dissents, while Scalia in paticular is somewhat antagonistic to the moderates and liberals on the Court. The eminently likeable Roberts seems like an obvious choice, unless someone has the name of another potential Bush nominee with better credentials. In fact, I'd like to see any opposition to the Roberts nomination contain an explanation of just who Bush should appoint to Chief Justice.


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