One of the best commentators on judicial confirmations, Manuel Miranda, former counsel to Senator Bill Frist, has an interesting piece comparing the battle against Robert Bork to what we might expect of Judge Roberts’s hearings next month.
“[T]he fight over Bork bears many lessons,” writes Miranda. “One reason is that it centered on an indisputably well-qualified nominee’s well-considered judicial philosophy, not on questions of competence or extrajudicial behavior. Another is that the careers of many liberal lobbyists were shaped by the Bork fight. They went on to turn ‘borking’ into a lucrative cottage industry, funded mostly by Hollywood radicals, trial lawyers and the abortion-clinic lobby.”
Unlike Bork, Roberts at first appeared to be a stealth candidate, one who had little on record to supply ammunition to liberal adversaries. That is no longer the case:
“Roberts’s nomination looked at first more like the Thomas fight than the Bork one, with liberal complaints of a limited paper trail, efforts to invade his family’s privacy, and a dishonest attack by feminists. But 75,000 pages of documents later, liberals have as much to attack Judge Roberts on as they did Judge Bork. Targets of opportunity are more pithy and witty, but no less a treasure trove of issues. Documents recording Mr. Roberts’s policy-shaping opinions over 12 years of executive branch service have revealed his views on as far-ranging a set of history-shaping interventions as the Senate has ever before scrutinized for any Supreme Court nominee.
“It turns out that behind the mild-mannered judicial Clark Kent who appeared with President Bush last July is a conservative Superman. Some supporters find his lack of scarring over the years reason for suspicion, as well as his minor roles in some liberal causes. But Robert Bork received much more serious Republican fire.”
If you’re beginning to worry that Roberts won’t be confirmed, you probably don’t have to–Miranda predicts he will. The reason, you see, is very, very basic:
“Yet even though the Bork fight shows us the direction in which the Roberts fight may go, Judge Roberts’s confirmation is all but inevitable, barring some scandal–and for only one reason: Democrats do not control the Senate. That is a lesson that Democrats will trumpet in a few weeks, and that Republicans should as well. Republicans also should be careful not to think that Judge Roberts’s confirmation is due to anything else but that. The Democrats will fail to block Judge Roberts not because he’s a ‘moderate’ or a ‘stealth nominee,’ but simply because they don’t have the votes.”