TCS Daily


Known Unknowns and the Court

By Ryan H. Sager - July 26, 2005 12:00 AM

A week ago, when President Bush named Judge John G. Roberts as his pick for the Supreme Court, "West Wing" fans might have been forgiven for thinking back to Robert "Bingo Bob" Russell.

Russell, a fictional representative from the real state of Colorado was elevated two years ago to the fictional vice presidency when the fictional president -- Josiah Bartlet, played by the real Martin Sheen -- needed to get someone through the fictional Senate in a real hurry.

This led to the following speech-writing session between two punchy, pissed-off, ink-stained wretches:

Toby: "In a triumph of the middling, a nod to mediocrity, and with gorge rising, it gives me great nausea to announce Robert Russell -- Bingo Bob, himself -- as your new Vice President."

Will: "This lapdog of the mining interests is as dull as he is unremarkable ..."

Toby: "... as lackluster as he is soporific. This reversion to the mean ..."

Will: "... this rebuke to the exemplary ..."

Toby: "... gives hope to the millions unfavored by the exceptional ... Bob Russell: not the worst, not the best, just what we're stuck with."

At the end of the show, the mock speech finds its way into the president's teleprompter, and hilarity ensues.

Now, Bush's only complication when he made his announcement was pint-sized-and-saddle-shoed Dancin' Jack, but the undertones were the same as with Bingo Bob: This guy's no one's dream, he's no one's nightmare -- and he'll put everyone to sleep.

And that's supposed to be a good thing.

Sure, Roberts is not quite "mediocre." It's hard to call a guy with his resume mediocre. But after a week of every liberal interest group in the country digging around in the judge's past like a bunch of coked-up ferrets for his positions on various issues, we've learned ... precisely nothing.

This nominee's not just stealth. He's actually invisible.

But while the Roberts nomination may seem like a sly move to a White House that clearly sees itself in a weak position politically, is this the kind of behavior anyone wants to encourage in a president? Is this any kind of process, where a nominee to the Supreme Court having an opinion on anything -- like, say, the Constitution -- is seen as a potentially devastating liability?

Sen. Chuck Schumer's been making a lot of noise about questioning the nominee in detail on his views on everything from partial-birth abortion to abstract expressionism. Republicans have countered by making a lot of noise about not compromising justices' "independence" on the bench by asking for "prior commitments" on hot-button issues.

But it's hard to see just where Schumer's off-base. Why would it be so wrong for the Senate and the American people to actually have some idea what Judge Roberts thinks about -- well, anything?

Schumer laid out his argument fairly convincingly when Roberts was last before the Senate judiciary committee, on his way to confirmation to the D.C. circuit court.

At the time, Roberts had even less judicial experience than he has today -- i.e., none. And since briefs he wrote on behalf of various administrations and private clients couldn't really be attributed to Roberts as representing his own opinions, Schumer peppered him with questions. When Roberts refused to respond, Schumer asked: "How is this different than us examining the precedents of judges who have written, you know, pages and pages of cases?"

Roberts protested that answering questions about past Supreme Court decisions would let lawyers who argued before him know where he stood on various precedents and give them reason to question whether he was really impartial.

Schumer called this an "absurd argument."

"Justices on the bench dissent," he said. "They criticize opinions that ... become part of the law. And that would mean on a whole variety of different instances every one of the nine Supreme Court Justices would be held not to be fair, not to be unbiased."

Roberts made his most plausible counter-argument when he expressed concern that intense questioning would force judges into "giving commitments, forecasts, hints, even at the extreme, bargains, for confirmation."

But the fact is that if a president insists on putting forth a nominee with little-to-no record on judicial philosophy and few-if-any publicly stated opinions about the law, the more the burden is on the Senate to ask questions.

A Bingo Bob -- someone confirmable for his sheer blandness and lack of discernable principles -- might be fine for the vice presidency. But, for the Supreme Court, far more should be demanded of the president.

Ryan Sager is a member of the editorial board of The New York Post. He also edits the blog Miscellaneous Objections and can be reached at editor@rhsager.com.

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