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‹ FEATURED DISCUSSION

September 04, 2005

Politics or the Rule of Law Yet Again

By Stephen Presser

As this is written the Roberts hearings, scheduled to begin on Tuesday, are in some jeopardy, because of the death of Chief Justice Rehnquist, and because of the ongoing turmoil over the aftermath of Hurricane Katrina. The President finds himself under a barrage of criticism from Democrats for failing to deliver more relief to New Orleans (as if he had the power to do that), and there are reports that the Mayor of New Orleans, in an act of extraordinary chutzpah, has asked for a delay in the Roberts hearings so that the Administration can concentrate on aid to his city. We may never know whether the devastation that hit New Orleans is due simply to an act of God, to a failure by state and local officials, or to a federal relief effort which was too slow, but it looks to me, as Ben Stein has argued in the American Spectator, as if objective observers would conclude that President Bush has done nothing wrong, and that those claiming he did are engaging in the crassest and most reprehensible form of partisan politics.

Similarly, the extraordinary posturing that we are beginning to see coming from the Senate, in the wake of the Chief’s passing, is anything but the fulfillment of the advise and consent function as traditionally understood. Thus, Senator Schumer, who has come to be the leading champion of the notion that “judicial ideology” needs to be balanced on the Court, and who appears to have believed that under Rehnquist the court became unbalanced in a rightward direction, now declares that the hearings should be delayed because, as he said on ABC, “ We can take a few days out to mourn Justice Rehnquist. He was a towering figure in the judiciary . . . Judge Roberts was his law clerk, and Judge Rehnquist was Judge Roberts' mentor. I think it makes a good deal of sense for us to take time, catch our breath and take a few days out.” Even more remarkably, Senator Christopher Dodd has suggested that the President should consider asking Justice O’Connor temporarily to rescind her retirement, presumably to become acting Chief Justice, in order to give the President more time to consider how permanently to replace the Chief Justice.

What appears to be going on in this attempt to delay the President and the Senate from carrying out their constitutionally-mandated functions is to give the Senate Democrats, their allies in the liberal interest groups, and the main stream media more time to make the case that the President cannot be permitted to pack the Court with the sort of conservative nominees he has promised, and that the Court must remain “balanced,” and that, in Cass Sunstein’s bizarre appellation, no “fundamentalist Conservatives” need apply.

One side in this debate, then, appears ready to use any tactic or opportunity at hand to engage in a politically-motivated effort to dictate the kind of result-oriented jurisprudence on the Court it favors, as I suggested in my last post. We can only hope that the White House will be able to perceive this effort for what it is, and mount a strong case that to delay Judge Roberts’s confirmation, to delay the selection of a new Chief Justice, or to give in to the nonsense about “judicial ideology” or “fundamentalist conservative,” would be nothing short of a betrayal of the Constitution and the rule of law itself. I hope somebody at 1600 Pennsylvania Avenue is reading Richard’s and my efforts.

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Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.