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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

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    :: Monday, August 08, 2005 ::
    So, how's the Roberts nomination faring?

    Generally: I think the "lesson learned" from '87 is that you're much more likely to win if you fight back. Somehow I doubt that would be news to Sun Tzu or Clausewitz, but apparently it was to Strom Thurmond, Orrin Hatch, Tom Korologos, and even, dare I say it, Robert Bork and Ronald Reagan.

    Case in point: in '87, National Review did an excellent cover story (by my son's godfather Richard Vigilante) about how great Bork is. This year, it did an equally fine cover story on what a buffoon Chuck Schumer is. See the difference? They're the issue this time.

    OK, let' s round up some reactions to the nomination.

    Ann Coulter reads it as a "stealth nomination." I love Ann and I know that to disagree with her requires activating the invecto-deflecto-shield. But there's at least one huge difference between Roberts and all three of the past GOP nominees who could be considered "stealth" -- O'Connor, Kennedy, and Souter. The difference is Washington experience. Roberts has it; so did Rehnquist, Scalia, and Thomas at the time of their appointments. When you come to a high federal position from Sacramento, Phoenix, or the White Mountains, it gets to you. When you've been there for over twenty years, you've been there and done that.

    Of course it matters what you've been doing during those DC years. In Roberts's case, to judge from his older memos that have been surfacing as part of the Reagan Archives, it appears he engaged in a number of rightwing snarkfests -- just like certain other young convervatives who came to Washington in those heady days, mentioning no further names. Click here and here.

    Then there's folks in a tizzy because Roberts once tossed in five pro-bono hours' worth of moot-court participation on the wrong side in Romer v. Evans. Come on, guys. Doing such a favor for one of your firm's clients is part of life in big Washington firms, especially when you are -- as Roberts is -- a world-class moot-courter.

    Second, and more importantly, this wasn't Lawrence, it was Romer. Ultimately I have no doubt as to the utter wrongness of the Court's opinion striking down Colorado's Amendment 2, nor as to Amendment 2's constitutionality under the 14th Amendment, but all should admit that a state constitutional amendment that places a category of citizens at a political disadvantage in pursuing favorable legislation is kind of a new animal in the constitutional zoo. It merited a close look and maybe a "Huh?" It was not just "gay rights," up or down. There were and are good arguments on the other side.

    Most conservatives are cluing in about this. Tony Perkins of the ever with-it Family Research Council issued this statement.

    Perkins alludes to a controversy about "the motives behind one of the main sources of the LA Times story who is no longer with the law firm and is now with a left-leaning advocacy organization in Washington." The Washington Times reported:
    "The goal of the left here was to try driving a wedge between conservatives and a nominee," said Leonard A. Leo, a conservative lawyer working with the White House to confirm Judge Roberts. "They have failed."
    According to the Times, the source, former Hogan & Hartson attorney Walter A. Smith, said:
    "This is somehow a plot to hurt John?" he asked incredulously. "How does this hurt him?"
    Oh, how cute. Imagine, a Washington lawyer and activist not knowing that a divided and uncertain pro-Roberts coalition would be more vulnerable to the filibuster strategy than a united one, and that in the wake of a rejection on Roberts, Bush would probably have less appetite for a fight rather than more.

    Actually, I can't imagine such a thing at all. But I can imagine the tactic not working, and I think Leonard Leo is right about that.

    :: David M. Wagner 7:55 PM [+] ::

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