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 MoveOn.org. 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."
Critics have also targeted Roberts's briefs in abortion-related cases from his time in the first Bush administration. One brief, in the case of Rust v. Sullivan, repeated pro-forma language about Roe v. Wade being wrongly decided and defended the constitutionality of the so-called gag rule, which prevented family-planning organizations receiving federal funds from discussing abortion. How radical can this be when the Supreme Court sided with the administration? And when even David Souter, the liberals' ideal of a Republican-nominated "moderate," joined the majority opinion?
In another brief, Roberts defended the right of Operation Rescue — the militant anti-abortion group — to picket outside abortion clinics. Pro-choicers implausibly argued that the demonstrators were violating a Reconstruction-era civil-rights law meant to protect blacks from the Ku Klux Klan. The Supreme Court ruled 6-3 in the administration's — and Roberts's — favor. So here is the bottom line on abortion: The Supreme Court, whose current abortion-related jurisprudence is considered nearly sacrosanct by the left, agreed with Roberts in two cases in which he signed briefs during the first Bush administration (when it was his job, of course, to argue whatever the administration told him to argue).
None of this is going to get Roberts's critics very far. They are reduced to resorting to the French-fry case. Washington, D.C., had a policy of taking into custody minors who committed offenses in its Metrorail stations. A 12-year-old girl was nabbed eating a French fry and duly arrested. Roberts upheld the constitutionality of the policy, not because he liked it, but because it wasn't unconstitutional: "The question before us ... is not whether these policies were a bad idea, but whether they violated the Fourth and Fifth Amendments to the Constitution." It was a unanimous decision.
John Roberts will almost certainly pull the Supreme Court to the right. But there is nothing that Democrats and outside groups will be able to do to stop it, because Borking has met its match.