New York Times Hits and Misses

The New York Times in an Editorial yesterday hit on some good points on Judge Roberts, but also missed the point noticeably at the same time.

The Bush administration could make the Senate's job easier by handing over all the documents Mr. Roberts prepared when he worked for the administrations of Ronald Reagan and George H. W. Bush. And when Judge Roberts is questioned at his confirmation hearing, he should speak candidly and at some length about his views on important legal issues and precedents.

Very true, but they seem to miss the point that it is not an option for the President to hand over the Roberts documents, it should be a must. The very fact that confirmation hearings on Roberts will proceed without the release of those documents only goes to prove the degree to which the Senate has become a rubber stamp for this President's judicial nominations. The Senate should and must use its full power to check the authority of the executive, and that includes full disclosure on the President's appointments to the Supreme Court. Democrats and Republicans alike should determine not to proceed with the confirmation until those documents are released. But this Senate refuses to use its authority and thus yields unbelievable power to the Presidency. What the New York Times, and indeed much of the public misses here is that the checks and balances of our system are rapidly decaying. With the possibility of the nuclear option looming large over all judicial nominations, and the elimination of the blue-slip rule party has become far more important in Washington than Country, leading us to no longer be the Democracy built on Separation of Powers that we thought we were to what is essentially a limited dictatorship. If another hard right Justice is nominated and confirmed by the Senate we will likely see even the overturning of Hamdi v. Rumsfeld and the end to your rights to due process of law. Even the allegedly more "moderate" Abu Gonzalez is so favorable towards Presidential power that American Democracy as we know it could fall by the way-side.

That said, the change in what Roberts has been nominated for creates a kind of indifference to his nomination. I have thought since his name came up, and the opinion has grown on me more as time has passed that Roberts is very much like the late Chief Justice Rehnquist, therefore he was an unsuitable replacement for O'Conner, but no longer is for Rehnquist. The Times finishes off.

Some Democrats have urged that he make his second nomination, for the seat occupied by Sandra Day O'Connor, before the Senate takes up Judge Roberts's nomination. That seems reasonable. Chief Justice William Rehnquist, who died on Saturday, was a very conservative jurist, and from what we know about Judge Roberts, it is clear that President Bush has nominated a very conservative man to take his place. It is also important to know the president's plans for filling the seat held by the more moderate Justice O'Connor.