Supreme Choice for the Court: Judge John Roberts and the Futility of Media Speculation

by: Steve Yuhas

As my hopes were dashed that Federal Appeals Court Judge Janice Rogers Brown would be elevated to the Supreme Court my spirits were lifted that the mainstream media spent most of the day speculating who would be the nominee.  Many of them told the world that it was surely a woman and that it would be one of the two judges named Edith; most of them spent the entire day talking about their voting records on social issues and it wasn’t until about two hours before the actual announcement was made that the foolish mainstream media backed off their Edith complex.  It was a comical day, though, because one has to question the “sources” of all of these media folks – if the White House can keep the name of a Supreme Court nominee quiet from 12:30pm when President Bush offered Judge John Roberts, also from the D.C. Circuit Court of Appeals, until a half hour before the announcement – what does that say about the “sources” that reporters claim to have inside the White House?

When news broke that the President made his decision reporters began their quest to find Judge Edith Brown Clement and to pour over decisions she has written about abortion (one of the only things that seems to matter to Democrats) and other hot button issues like whether or not when you own a piece of property if government should be able to take it or if a person buys property if a spotted owl decides his perch should be on your tree whether or not you should be able to mow the lawn, lest the owl be disturbed.  When reporters had to report live that they couldn’t find anything in Judge Clement’s writing that would make for a firestorm before the announcement was even made – they were all left to speculate for hours over a nominee that wasn’t.

I have to say that I take great pleasure in the media being wrong and they were wrong and all of their sources were as well: logical people would presume that the sources for all of the mainstream press should now be called into question, but they won’t and they’ll just chalk one up as a mistake without facing the fact that none of them know what this White House is up to until this White House wants them to know.  There is an irony to the world reporting that a woman or minority was going to be appointed to replace Sandra Day O’Connor, but unlike Democratic conventions or office holders in the party – there is no quota system for President Bush and he bucked the advice from his wife, the polls and many “experts” who said that O’Connor’s seat was a woman’s seat, but the decision to appoint Judge Roberts certainly changed all that.

So who is John Roberts? 

To say the man is brilliant would not do him justice: graduating with honors from Harvard Law School magna cum laude and clerking for then Justice Rehnquist (when confirmed, note I do not use the word if, he will be the first person to serve on the Supreme Court while someone he clerked for is still seated and his old boss will still be the Chief Justice), he argued before the Supreme Court many times and more often than not won, when he did not he had a good rapport with his clients and on one occasion is said to have smiled and said after losing a case 9-0, “Well we got all of them” or something to that effect.  He sits on the D.C. Circuit Court of Appeals and was confirmed by a voice vote with not a single Senator objecting to him and conservatives should be thrilled today because President Bush kept a campaign promise to select a justice who would be in the mold of Justices Scalia and Thomas.  Judge Roberts is exactly that.

How can conservatives be sure?  Well look at the line up of those who within ten minutes of knowing his name sent out faxes and emails to members talking about how “extreme” Judge Roberts is: People for the American Way (what America is not clear) said his nomination and confirmation would be a “judicial catastrophe,” Planned Parenthood says Roberts’ nomination raises “grave concerns for women’s health and safety” (is there a record of murder or brutality that we should know about?), Senator Chuck Schumer said he voted against Judge Roberts for the bench before because “he wouldn’t answer questions” about certain cases (Justice Ginsberg did exactly the same thing, but she is a liberal so gets a pass from Chuck), Senator Barbara Boxer said that Roberts’ nomination is an “extraordinary circumstance” (hinting that the gang of 14 should break off and filibuster this nomination) and not to be left out the National Organization for Liberal Woman (NOW) said that President Bush picked a fight by nominating Roberts and “We intend to give him one” (I was not aware that the NOW gang had a vote, but I suppose they do by using a drunk Senator Kennedy or another proxy who can use their talking points).

The fact of the matter is that one need only look at the detractors that came out, in most cases, before Judge Roberts was nominated to the bench and in other cases minutes after with their faxes and “urgent” emails to mass mail lists (many I subscribe to in order to see what the enemy is up to), with material saying they would fight the nomination no matter who it was.  When all of the same groups above thought it was going to be one of the two Ediths they did exactly the same thing – when it turned out to be Judge John Roberts all they had to do was change the name.

Frankly – one who plays in politics and watches it even from the periphery cannot believe that these interest groups did not have a press release prepared saying exactly the same thing and all they had to do was fill in a name because nobody that President Bush picked for the Supreme Court would be acceptable to people who want to push their agenda for America through the courts because they continue to lose at the ballot box.

To the victor goes the spoils and one of the spoils of being the President and winning a majority in the Senate is that federal court appointments get to be made by the party in power.  Democrats lost the presidency because they had a bad candidate and they lost seats in the Senate because they don’t have any good ideas.  Losing elections has consequences and one of them is that they do not get to decide who will be on the Supreme Court – the President does with a majority of the Senate and chances are Republicans are going to give Judge Roberts a fair hearing and Democrats are going to try to soil him.  In the end Judge Roberts will become Justice Roberts and the Supreme Court may swing back to the right and will begin to correct years of harm caused by 5-4 decisions where Sandra Day O’Connor created a more liberal social structure in a society that is becoming more and more conservative.

Judge Roberts is a fine pick for the U.S. Supreme Court and when he takes the bench in October it may very well lead to a new era where the Constitution stops becoming a “living breathing document” and returns to being a document that law either conforms to or not and the judiciary is forced to end the absurdity that they can be full time jurists and un-elected legislators as well.

A return to the traditional strict constructionist view of the Supreme Court is what we will have this October when soon-to-be Justice Roberts takes his seat and that is exactly what President Bush promised and now the Senate has an obligation to confirm a man they confirmed unanimously just two years ago to the second most powerful court in America.

On an aside: I cannot wait for the next vacancy, I hope the President announces that he has made a decision on a Monday and keeps us in suspense until Wednesday so the media can look as foolish as it did on Tuesday.  Someone really needs to inquire where all the journalists sources come from since none of them got it right, but eating crow is good for you (someone should tell Judith Miller from the New York Times what happened – I hear the program of choice is BET in prison: maybe she had better sources).

Steve Yuhas is a columnist and radio talk show host on KOGO AM 600 based in San Diego.  He may be reached at steve@steveyuhas.com or www.steveyuhas.com