Two Steps Forward, One Back

This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.

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NY Sun
NEW YORK SUN CONTRIBUTOR

The Roberts nomination heads to the full Senate next week, after yesterday’s nod from the judiciary committee. The 13 to 5 vote is a big step forward for an impressive jurist who will be an asset to American jurisprudence. That three Democrats supported him is also another step forward, albeit perhaps a smaller one, in the effort to return the nomination and confirmation process to some semblance of sanity. Yet the fact that five Democrats, including New York’s own Senator Schumer, couldn’t bring themselves to endorse such an outstanding legal mind is a worrying step backward.


When his name was first announced, Judge Roberts struck us as an impressive jurist and has only reinforced that assessment over the past two months. Democrats have been perplexed by the seeming inscrutability of his ideological views, and some have argued that because of this he is some sort of “stealth” candidate.


But during his hearings it became clear that to the extent his “ideology” is difficult to identify, it is because he is above all a good lawyer. This is the most sensible explanation for how he could author memos probing the legal rationale for affirmative action while also helping gay-rights advocates prepare a court case. Whatever else the hearings have or have not shown, they have demonstrated that Roberts the judge, if not Roberts the man, takes the law, only the law,and nothing but the law seriously.


Three of the eight Democrats on the committee, Senators Leahy, Kohl, and Feingold, deserve high praise for realizing this, no matter how grudgingly. In particular, Senator Leahy was willing to go out on a limb and offer a “yes” vote, which he said was based on his conscience. They are in the mainstream of America, unlike the editorialists of The New York Times who opposed the confirmation of Judge Roberts.


Senator Schumer is a different matter. He began his comments yesterday by saying, “Mr. Chairman, let us take a step back for a moment and consider where we are, consider the context of the votes we cast today.” But he took a different type of step back with his vote against confirmation based on the risk – which the senator himself conceded was less than 50% – that Judge Roberts might rule like Justice Thomas.


Senator Clinton’s declaration late yesterday that she will vote against confirming Judge Roberts is also disappointing, especially because it was based in part on her complaints about the White House’s refusal to release certain documents from when Roberts served in the solicitor general’s office. It’s preposterous, considering that the Clinton administration’s solicitor general has opposed the release of the documents, and that a few years ago President Clinton and Mrs. Clinton both had lawyers before the Eighth Circuit arguing to defend the attorney-client privileges of the presidency against the independent counsel. If Senator Clinton ever becomes President Clinton, she’ll want her lawyers to be able to advise her with the protection of attorney-client privilege and without worrying that some senator from the opposing party will be scrutinizing every document as part of a confirmation process.


The best efforts of New York’s extremist senators and other obstructionist Democrats notwithstanding, the path now appears clear for Judge Roberts to become Chief Justice Roberts, since no one on either side expects a filibuster. That’s cause for celebration and, ultimately, a reminder that two steps forward and one step back still moves everyone ahead.

NY Sun
NEW YORK SUN CONTRIBUTOR

This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.


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