Austin, We Have a Problem

When Bill Frist, Arlen Specter, and Chuck Schumer agree on something, only one thing is certain: it's not liberals who are getting the short end of the stick. So when Arlen Specter and Chuck Schumer signal that they'll vote to confirm Judge Roberts, it means that conservatives are once again getting taken for a ride. When Roberts was first nominated, conservatives had every reason to think that the President had kept his promise.

Then came the hearings. Judge Roberts ran circles around the Judiciary Committee, correcting Senators on misquotes and showing a command of the law. In the process, he left himself outs. Hopeful conservatives, some better informed than others, continue to have hope. Careful listeners emphasize that he committed himself to little on the issues that are likely to come before him on the Court. Unfortunately, though fully capable of doing so, Roberts does not seem the type who would engage in Clintonesque word games that allow him to escape from his comments like Harry Houdini once on the Court.

Fortunately, conservatives got an escape clause too. Senators Sam Brownback and Tom Coburn got the last two Republican seats on the Judiciary Committee during the reorganization of the Chamber. Now is the time to use our trump card. While it is too late to stop the Roberts juggernaut, a second Supreme Court nomination is just around the corner.

There is talk of several judges who do and do not have clear track records, who do and do not have overarching judicial philosophies. Judge Roberts clearly has neither a clear track record nor an overarching judicial philosophy. He said during his hearings that he does not consider the Court a place for ideologues. To the contrary, every Justice on the Court should be an ideologue. The difference between ideologues and non-ideologues is that ideologues have a methodology for viewing the matters that come before them while non-ideologues do whatever is convenient at the time. It is those who have no such approach that have done the legalistic gymnastics that have given us the status quo, or, as President Reagan put it, "the mess we're in".

Please take this opportunity to tell Senators Brownback and Coburn that any judge who lacks a consistent, textualist/originalist approach and a track record to back it up should be denied confirmation. Three of the last five Republican nominations, excluding Roberts, have proven busts. Looking at their records on the Court, one could be forgiven for forgetting to which party the Presidents who nominated them belonged. That must end now.

I remain somewhat hopeful that conservative doubts about Judge Roberts will be proven wrong, but the guessing game must end now.