Rich Lowry

 How do you define "flummoxed"? That would be Sen. Chuck Schumer. Or "flailing"? That would be Sen. Ted Kennedy. Or "desperate"? That would be the array of left-wing activist groups from People For the American Way to This cadre of desperately flailing flummoxed anti-Bushies has been brought to their state of extreme futility by the nomination to the Supreme Court of John Roberts, the un-Borkable.

Borking was pioneered by Kennedy, of course, when Judge Robert Bork was nominated to the court by President Reagan in 1987. It is a practice that involves destroying conservative nominees in all-out smear-fests. Eighteen years later, the Right has a two-step counterstrategy. First, find a nominee who has spent his career avoiding provocations that would give would-be Borkers traction. Then, unveil his nomination in a carefully prepared rollout with gorgeous visuals and rigorously on-message advocates.

President Bush opponents have been picking at Roberts's record, compiled as a deputy solicitor general in the first Bush administration, as a private advocate and as a judge on the D.C. Circuit Court of Appeals since 2003. They are finding little that is usefully distortable.

One focus is his dissent in a 2003 case involving the Endangered Species Act. He thought a three-judge panel of the D.C. court erred in upholding the constitutionality of the law under the Commerce Clause. Putting aside the details of the arroyo southwestern toad involved in the case, Roberts thought the panel's decision ignored recent federalism-friendly Supreme Court decisions in Lopez and Morrison that limited the reach of the Commerce Clause. Those decisions had been joined by Sandra Day O'Connor. Remember her? She's the retiring justice who has been universally praised by Democrats.

Even Kennedy argued that O'Connor represented "the mainstream of conservative judicial thinking," and said "that is what the American people are expecting" in her replacement. But that was all of three weeks ago. Now, Kennedy regards Roberts' agreement with O'Connor on the Commerce Clause with horror. He "can imagine few things worse for our seniors, for the disabled, for workers and for families."

Rich Lowry

Rich Lowry is author of Legacy: Paying the Price for the Clinton Years .
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