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Roberts reminds Democrats of 2004 outcome

John Kerry lost last November, and by losing,  let slip away the chance for Democrats to shape the judiciary. As Democrats ponder  the Roberts nomination, the implications of Kerry's loss sink in.
US Circuit Judge John Roberts meets with Massachusetts Senator Edward Kennedy on Capitol Hill
Supreme Court nominee Judge John Roberts makes a courtesy call on Sen. Edward Kennedy, D-Mass., on Thursday.Larry Downing / Reuters
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At a press conference Thursday to urge the Senate to grill Supreme Court nominee Judge John Roberts on his views, Rep. Mel Watt, D-N.C., stood with the senior senator from Massachusetts, Sen. Edward Kennedy. “I wonder what it would be like if the junior senator from Massachusetts had been making this appointment,” Watt mused ruefully.

But John Kerry lost last November, and by losing, let slip away the chance for Democrats to shape the judiciary.

As recent rulings on the Ten Commandments, medical marijuana and government confiscation of private property reminded Watt and others in Congress, as the judiciary goes, so goes the nation.

Watt said he was joining forces with Kennedy at the press conference “to emphasize how valuable one vote can be on the United States Supreme Court.”

Court's role in designing districts
Watt, who is black, made the issue personal by mentioning that the Supreme Court, in a series of 5-to-4 decisions, had supervised the redesign of his own gerrymandered congressional district, arguing over whether overt consideration of the race of the voters ought to be permissible when state legislators map out House districts.

The Senate confirmation of Roberts, which looks increasingly likely, would be a setback for the Democratic Party and especially for liberal Democrats such as Watt and Kennedy.

Four of the last five Supreme Court nominees who have been confirmed have moved the court in a liberal Democratic direction on issues such as the death penalty and gay rights.

The center of gravity on the court now looks like it is about to shift to the right, and there seems to be little the liberals such as Kennedy can do to stop it.

Centrist Democrats in the Senate, such as Sen. Joe Lieberman of Connecticut, have shown no interest in a filibuster of Roberts.

Having a conservative join the court will be demoralizing for the Democrats, although it will also give them urgent, new motivation to try to win the 2008 election.

For now, potential 2008 Democratic presidential contenders are withholding judgment on Roberts.

Clinton undecided on Roberts
I asked Sen. Hillary Clinton on Thursday afternoon for her view on Roberts. “I’m going to wait for the hearings and listen carefully to what’s asked and answered,” she replied.

When I asked what she knew about his record, she said “I really know only what I read in the paper.” Then she laughed and said, “I don’t have any inside information — do you have any?”

When the day comes to vote on the Roberts nomination, Clinton, Sen. Evan Bayh, D-Ind., Sen. Joe Biden, D-Del, and Sen. Russ Feingold, D-Wisc., all possible presidential contenders, will be closely watched to see if they support Bush’s nominee.

If they vote “aye,” they’d likely face a rival in the 2008 primaries saying — in imitation of Howard Dean’s dramatic challenge on the Iraq war in 2003 — “What I want to know is: why did the leaders of my party help put the president’s right-wing nominee on the Supreme Court?”

At stake is not just one person’s presidential quest, but the legislative legacy of the Democratic Party for past 50 years.

Roberts has already suggested, in a dissent he wrote as an appellate judge in 2003, that the reach of Endangered Species Act of 1973 ought to be restricted.

Although the Endangered Species Act was signed into law by Richard Nixon, it was passed by a Democratic-controlled Congress.

Democratic laws under court challenge
To buttress his critique of a broad reading of the Endangered Species Act, Roberts cited the decisions written by Chief Justice William Rehnquist striking down key portions of the Violence Against Women Act of 1994 and the Gun Free School Zones Act of 1990.

Again, both of those laws were passed by Democratic-controlled Congresses.

In fact, the Violence Against Women Act (VAWA) was one of the last major measures passed by the Democratic-controlled House before the Gingrich Revolution of 1994 ended 40 years of Democratic dominance.

A Republican-controlled Congress won’t rescind the Endangered Species Act or VAWA – the political cost of doing so would be too high. But Republican-appointed judges might tightly circumscribe such Democratic laws and in some cases, such as Rehnquist’s ruling on VAWA, have already done so.

What is going on here is a historic tug of war between the Democratic past and the Republican present. Roberts would add another powerful force to the Republican side of the tug of war.

A Roberts victory would be significant for another reason. Justices hire four law clerks a year, sharp, ambitious graduates of the nation’s elite law schools.

A conservative justice serves as mentor and shepherd for future generations of conservative judges, law professors, and congressional staffers — the people who write and interpret the laws.

Thirty years on the bench multiplied by four clerks a year equals 120 conservative legal stars.

Roberts himself clerked with Rehnquist in 1980 and 1981.

The true dimensions of Kerry’s loss last November are about to become clearer.