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Keeping our power dry and our wits sharpened in the service of sensible jurisprudence

August 29, 2005 4:59 PM

I think what I like best about being involved in a debate with Richard is that he may be the most analytical, dispassionate, and rational person I know. For a riot of sheer reason it is hard to top his last posting. He has elegantly pointed out all the differences between John Roberts and Robert Bork, and clearly indicated how the former doesn�t suffer from the weaknesses of the latter, and, moreover, how PFAW has failed utterly to substantiate its case that Roberts would turn back our valuable American freedoms. If all we had in the senior branch of our legislature were Senator Epsteins, we could all rest easy.

Alas, that�s not the case, and the problem with what PFAW is up to, and the strategy of the Roberts opposition is that the kind of close analysis Richard has done may not be engaged in by the media. In some quarters of the polity all one needs to do is label someone a �far right-wing conservative,� and the coded message � �This person will cut back on abortion rights, affirmative action, the secular public square, Title IX, civil rights, gay rights, and God knows what else� is believed and takes hold. The truth of the proposition is immune to challenge, since what we�re dealing with here is ideology rather than facts.

Right now, it does look as if the battle against Roberts will fail, but it won�t be for lack of trying on the part of PFAW and others of its ilk. Robert Novak�s column of August 25 reports that the 66-year old James Flug, a veteran Borker, has rejoined Senator Edward Kennedy�s staff, and that this would not have happened unless the Democrats were willing to make a full-bore effort to stop Roberts.

I do believe that there is a fair chance we will see a fully-orchestrated effort to suggest that civil rights, human rights, and the good life itself simply cannot survive if a real conservative replaces Justice O�Connor, that John Roberts will be painted as such a real conservative, that much of the media will accept the argument, and that the Roberts confirmation will not be a cakewalk. The mainstream media still loves to present the kind of conservatism espoused by Russell Kirk, Clarence Thomas, George W. Bush and John Roberts as something close to evil incarnate, it does not engage in the kind of nuanced analysis Richard does, and we defenders of the framers� judicial philosophy may be drowned out.

It wasn�t too long ago, during the Thomas hearings if memory serves me correctly, when Richard�s own thoughtful analysis was demonized in Senate hearings as an inappropriate influence on a future justice. The opportunities for that sort of chicanery will present themselves again, and I believe that we need to keep our rhetorical powder dry and our wits sharpened in the service of sensible jurisprudence. The silver lining (to use still another worn clich�) in this cloud of misinformation spun by critics of Roberts is that if Richard and people like him do speak out, there is a chance that the kind of defense of conservative jurisprudence we have explored in these bloggings might have to be taken account of by the mainstream media, and might even penetrate the consciousness of the American public.




Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute

Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.