The plain-vanilla debate over Roberts has me hankering for some rocky road.
BY MANUEL MIRANDA
Friday, August 26, 2005 12:01 a.m. EDT
On that cold January day, aboard a moving federally subsidized train, Chuck Grassley had a captive audience. The mild-mannered Republican from Iowa, the only farmer in the Senate, Mr. Grassley stood to join his rarely heard voice to his majority leader's intent to end judicial filibusters one way or another. Republican senators were traveling to their winter retreat in the Appalachian mountains of West Virginia, partly to plan and partly to celebrate a larger-than-expected ballot-box victory in 2004 that brought them seven new GOP colleagues.
After several senators had their say, it was Mr. Grassley who would provide the rallying cry that garnered applause, hoots and hollers. On ending the Democrats' unprecedented abuse of the filibuster, Mr. Grassley saw, and said it plainly, that "if elections are to mean anything, and they must, these filibusters must be ended." With that, the path of a fight that began when Democrats blocked appellate court nominees Charles Pickering and Priscilla Owen in 2002, and of an internal Republican debate over the "nuclear option" that had lasted two years, took a decisive turn.
There is something about putting things in simple terms and getting people to nod thoughtfully in agreement, or even to hoot.
For years now, Americans have heard President Bush tell us that he wants "judges who will interpret the law and not make the law from the bench." In a 2003 visit to Dearborn, Mich., you could see wonderment on the president's face as he was forced to pause for loud applause after bringing up the four Michigan judicial nominees the Democrats were blocking. White House aides would later confirm that the judge line always got the most applause of any, wherever Mr. Bush went.
Even so, there is always room for improvement. The truth is that courts make law all the time and no one minds. Since King Henry II first introduced common law in England more than nine centuries ago, this system, which America inherited, has been nothing more than judge-made edicts in areas where legislatures are silent and where justice demands it. In speaking of a Supreme Court nominee, the line makes the president appear poorly served by his staff.
It would be more precise if the president said: "I want a Supreme Court justice who will respect the Constitution, not feel at liberty to rewrite it." It would also be more inspiring. Whereas Americans sacrifice their lives for the Constitution as they do for the flag, not one American soldier or cop has ever risked life and limb for something like the Class Action Act, federal sentencing guidelines or the progressive tax code. It is for good reason that a few years ago the American Bar Association launched a self-promotion showing a little girl tucked in for bedtime safely covered by a blanket that depicts the words of the Constitution.
Although someone has to say it, one wonders also how much it helps to build for the future when the president (or his allies) reminds us that John Roberts is "superbly qualified." Does anyone have any doubt that a President Hillary Clinton would nominate jurists who are qualified, and superbly so? Her husband did. One may disagree with Justices Ruth Bader Ginsburg and Stephen Breyer about many things, but unqualified they are not.
In a few weeks, Republican senators will also leave us asking for more. They will rise to stand on the Senate floor, and with all the courage and skill that most of them can muster, GOP senators will remind America that John Roberts graduated from Harvard. It is a good thing C-Span 2 doesn't have to sell ad time.
There is a reason for this vanilla approach. For three years GOP polling and focus groups have taught that Republicans safely win every judicial nominee debate, even when Democrats have succeeded in filibustering the president's nominees. To win--safely--Republicans have needed three ingredients. First, they needed Democrats to trash nominees, preferably in the manner of the shrill Barbara Boxer of California or the unctuous Pat Leahy of Vermont. Second, Republicans needed to create the opportunity for liberals to sound like liberals. This explains why Bill Frist scheduled seven votes on blocked appellate court nominee Miguel Estrada and staged a 40-hour Senate floor debate in November 2003. The third ingredient was the easiest, all Republicans needed to do was to point out that the beleaguered nominee was credentialed--oh, and a good guy.
Like the President's well-worn judge lines, GOP senators will be playing it safe in the Roberts debate. Their aim will not be to raise their "positives" in the GOP's monthly track polling, but merely to let their most liberal opponents raise the Democrats' "negatives."
I know it all works, and yet I wonder. Just as I yearn for a conservative president who comfortably quotes Aeschylus, Frost or C.S. Lewis, or who describes the enemy with a reference to a popular film, surely I am not alone in hoping that the president or a senator, perhaps one who wants to be president, will join the Roberts debate by speaking of the Constitution and why it has made this country special and great, or even to be so daring as to tell us why Mr. Roberts's confirmation will make a difference in the lives of our children.
Mr. Miranda, former counsel to Senate Majority Leader Bill Frist, is founder and chairman of the Third Branch Conference, a coalition of grassroots organizations following judicial issues. His column appears on Mondays, Wednesdays and Fridays
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