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Thursday, July 21, 2005

How Conservative is Mainstream?

While George W. Bush may or may not have picked a "mainstream" judge - after all, "mainstream" is a pretty ambiguous term - it is unclear to what extent John Roberts is a Conservative.

It bears re-stating that not all Conservatives are created equal - or perhaps, developed equal.

Sandra Day O'Connor is what could be called a Goldwater Republican - she believed in a firm wall of separation between church and state ("Tying secular and religious authority together poses risks to both,"), she respected the rights of individual women over some amorphous right of government to regulate health issues (authoring the "undue burden" test, which says in part "Only where state regulation imposes an undue burden on a woman's ability to make this decision does the power of the State reach into the heart of the liberty protected by the Due Process Clause.", and she was a champion of the rights of the accused (ruling that the reading of Miranda rights was Constitutionally mandated.

The early indication is that - well, we don't know anything about how John Roberts views these issues. At least, we don't know directly.

Roberts has a history of not making his views public. He's a member of the Federalist Society, which is not a horrible thing. However, there is this short quote that worries me:

"The conventional wisdom is that this is a conservative court," he said. "We have to take that more skeptically. On the three issues the public was most interested in — school prayer, abortion and Miranda rights — the conservatives lost on all."

His very thin resume as an appeals judge doesn't give much indication of how steep his inclination is to bend the law to his ideology (and, let's be honest, everyone does that). This blurb bothers me a bit:

"... he voted to throw out a nearly $1-billion legal verdict won by 17 former American prisoners of war who said they were tortured and abused by Iraq after their capture during the 1991 Persian Gulf War."

Without looking at the opinion and seeing what points of law he ruled on, it is impossible to get a feel for his jurisprudence. It galls me, however, to see our government stand in the way of our POW's being compensated for the pain and suffering they took on our behalf.

He does seem to be no friend of the accused - being one of three judges that ruled short military tribunals were good enough of a guarnatee of rights for Gitmo detainees.

His comments also seem to indicate that his religious views very strongly effect his conception of seperation of church and state:

"I don't know how you can call a court conservative when it upholds the Playboy Channel's right to broadcast its kind of programs."

While I'm not a Playboy subscriber, I think they are perfectly within their rights to broadcast their programming.

So, while there isn't enough to declare Roberts a rapid Republi-vangelical, there is enough to be cautious. After all, if confirmed, this man can be expected to remain on the highest court in our land for at least three decades - and will be a leading candidate for Chief Justice for at least the last two decades of that time.

Once again, Democrats appear to have stepped on themselves. By rushing to cannonize Sandra Day O'Connor as a moderate, Democrats not only made it easier for President to look further to the right for his decision, they almost forced him to do so or appear weak. And Sandra Day O'Connor was no liberal, and her credentials as a moderate exist only on a slender thread:

"In tie-breaking votes (5-4 or 4-3 majorities), she went with the conservative majority (Rehnquist, Scalia, Thomas, and Kennedy) 187 times, dissenting on only 29 occasions. Liberal majorities, however, only got the pleasure of her cooperative company 40 times. She dissented from them 78 times (to get an idea of the general tilt of the court, of the 334 cases decided by one-vote majorities during the Rehnquist Court, 216 of them went to the conservatives)."

There are all stripes of Conservatives, and laying claim to that ideology does not, and should not, automatically disqualify anyone from any position (except "Grand Poobah of Liberalism"). However, Liberals have to get smarter about how what they say impacts what Republicans do. There is no way to compromise with an extremist - the result of trying is nothing less than incrementalism. It is the selling out of principles in an attempt to maintain public dignity and a peaceful co-existence.

Perhaps, what Democrats need most, is to rediscover that some things are worth fighting for.

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