Judge Roberts

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The ever articulate Sen. Charles Schumer issued a statement Thursday on why he is torn on the Roberts nomination. He listed what he described as the pros for Roberts and handsomely acknowledged his brilliance and experience. Then he went into the cons.

"On the con side is the question of compassion and humanity. I said on the first day of these hearings that it is important to determine not just the quality of your mind, but the fullness of your heart–the ability to truly empathize with those who are less fortunate and who often need the protections of the government and the assistance of the law to have any chance at all.

"It didn't seem much, for instance, to concede that the wording of 'illegal amigos' was unfortunate, yet you refused to say so. America has in the 21st century moved beyond the cramped view of civil rights professed in the early Reagan administration, but you would not admit in 2005 that any of those views you argued for in the early 80s were misguided. That is troubling."

Schumer's second con was the government's refusal to hand over the internal memos that Roberts wrote when he was deputy solicitor general. Understandably, Schumer omitted any reference to the opposition expressed during the hearings on Miguel Estrada by all living former solicitors general to the disclosure of such documents. His third con was Roberts's refusal to answer many questions. On this point Schumer understandably did not mention the refusal of his fellow graduate of James Madison High School Ruth Bader Ginsburg to answer many questions during her confirmation hearings in 1993.

Schumer's concluding paragraph:

"We must now take the evidence we have and try to answer the fundamental question: What kind of justice will John Roberts be? Will you be a truly modest, temperate, careful judge in the tradition of Harlan, Jackson, Frankfurter, and Friendly? Will you be a very conservative judge who will impede congressional prerogatives but does not use the bench to remake society, like Justice Rehnquist? Or will you use your enormous talents to use the court to turn back a near century of progress and create the majority that Justices Scalia and Thomas could not achieve? This is the question we on this committee will be grappling with this week."

Some of this is hyperbole, at best. "Turn back a near century of progress"? Come on. Would Schumer vote for Harlan and Friendly if they should somehow come back and be nominated by George W. Bush? Not likely. Reportedly the Democratic senators on Judiciary are meeting this afternoon with leaders of "the groups"–People For the American Way, the Alliance for Justice–that raise millions through direct mail by promising to oppose Republican judicial nominees and that came out against Roberts before the hearings. Cynics would say the senators will be there to receive their orders. Putting on my old hat as a political consultant, I would say it would be shrewder for the large majority of Democratic senators to vote for Roberts–and then to say that Bush's nominee to replace Sandra Day O'Connor, whoever he or she is, is much more extreme and radical than that nice Judge Roberts. At least some of those mentioned as possible nominees will provide some basis for making this argument. But anger, even rage, rules the Democratic Party these days. Almost all Republican senators meekly voted to confirm Ruth Bader Ginsburg and Stephen Breyer. (Sen. Richard Lugar voted against him, as I recall, on the grounds that Breyer had shown poor judgment in becoming a name at Lloyd's; names are liable up to the whole extent of their net worth for payouts on insurance contracts they subscribe to under Lloyd's rules.) But Democrats are a different breed of cat.

My bet, of course, is that Schumer will vote against Roberts. And so probably will all of the Democrats on the Judiciary Committee. But not all the Democrats in the Senate. All the Judiciary Committee Democrats come from one of the 19 states that voted for John Kerry. But 16 of the 44 Democratic senators (let Jim Jeffords have his preferred designation as Independent) are from states carried by George W. Bush. Look for most of them to vote for Roberts.