[Crossposted at
Also Also...]
Yesterday I got a missive from somewhere (MoveOnPAC, maybe?) urging me to call Senator Wyden and counsel him to vote No on confirming John Roberts for Chief Justice. Before I did that, I figured I should ask if he'd made a decision yet. He had:
Judge Roberts' combination of temperament and intelligence give him the potential to be a conciliatory voice at a divisive time. He has the skills to reach across the divisions in America to show that justice can be a healing force for the wounds that cut our society so deeply these days. He can help to unify the country by building a record of well-reasoned opinions, grounded in the rule of law, not ideology. He will receive my vote tomorrow to be the next Chief Justice of the United States.
I'm sort of down with that perspective; it reflects a view that seeks to broaden the scope of discussion beyond individual issues and toward a long-term vision of political amity, one that in our current times surely does seem visionary--at best.
Wyden buries the lede here--it's the 3rd to last paragraph in a fairly long statement, one that seems to confirm the speculation that he was seriously on the fence before today. He leads up to his conclusion by discussing his private talk with Roberts, the public testimony, the available record, and various media and advocacy group analyses. He makes good surface points, suggesting that he feels comfortable with a Yea vote because Roberts said he believes in privacy, believes in Griswold, and starts from a position of liberty and state control when it comes to life-end issues. He also takes a bit of a shot at the issue-advocates, saying that their belief that he's "not our choice" is irrelevant to his decision; by definition he's not Wyden's choice, he's the President's. (Wyden does indicate that he wouldn't personally choose Roberts for the job, either. How this virtual shrug on the devils of process is supposed to salve the wounded base he's addressing here, I'm not entirely sure.)
What concerns me is not what he said, but what he didn't say. By deflecting the base advocates as simply being unrealistic to oppose for opposition's sake, he ignores the reasons WHY they urged him to oppose: the book on Roberts is mighty thin, the White House is holding back many chapters, and what's in the book doesn't match the cover Roberts drew in the Senate hearings this month. Where is the recognition that we don't have much to go on as far as rulings? Where is the outrage that the Bush administration prevented the Senate from making a fully informed judgement? Where is the analysis of why his writings as a scheisster for Reagan don't match what he's saying now?
It's not in there, and as I say that concerns me. The picture that develops of Wyden here is that like many other Democrats, he was disarmed by Roberts' personal style and comfortably couched statements under oath. As Wyden rattles off the reasons he is not worried by Roberts' views because of what Roberts told him, the question arises: why does he believe him? Which is not to suggest that Roberts is clearly a liar, but you at least gotta ask.
Two other things niggle at me about this 'concession' speech. All of the rationale building he puts together is potentially undermined, in my view, by his strong warning that the next nominee may not be so lucky. It suggests that Wyden himself knows he is punting on Roberts, or in the parlance of weak-kneed Senators, "keeping his powder dry." The implication is that his review of Roberts' nomination was not done in a vacuum, but looking ahead to the next battle. Politically I understand the nuance, but ideologically it's suspect: either Roberts is a qualified nominee, or he's not. Saying "I wouldn't choose this guy, but I'll give him a pass and I promise to spend more opposition capital on the next one" suggests that Wyden doesn't even buy his own lengthy rationale.
The reason I bring this up is that I'm suspicious about his motives in conjunction with Oregon's Right to Die statute. Let me be upfront and state that I fully support our death with dignity law, I definitely want both Senators to do their best to protect it from federal intrusion, and I appreciate Wyden's past positions on the issue. But while I applaud his concern for state legislation approved by his constituents, this isn't the first time he's sublimated a national duty for a state one. Wyden mentions the Schiavo affair in his statement; he declares that he believed it was unwarranted to federally intrude on the case with a bill in Congress. What he doesn't tell you directly, is that he went ahead and allowed unanimous consent on the final version of the bill, once assisted suicide in Oregon had been protected from its effects.
And here again, part of Wyden's statement is to reassure voters that he believes Roberts will not futz with Oregon's right to die law--a case among the first he will hear as Chief. Beyond his suspension of disbelief that Roberts wasn't playing him like a National guitar, one might get the feeling that once his fears were assuaged on assisted suicide, he rolled over on the bigger question. As I said, I'm torn between approving of his strong concern for the vitality of Oregon law, and being dismayed at his "what's in it for me" approach to decisionmaking.
Perhaps taking a cue from Wyden himself, my final inclination is to take what he says as being in earnest, and move on. But in my own example of burying the lede, I'm not real happy with Ron today.
--TJ
