Thursday, September 22, 2005

Russ, Russ, Russ
Cripes, I leave Wisconsin for a few days and look what happens. Both Russ Feingold and Herb Kohl vote for confirmation of John Roberts in the Senate Judiciary Committee. Kohl's vote is at least understandable--he may be a Democrat, but he's not exactly a staunch progressive titan. I was more surprised by Feingold's vote. With so much concern surrounding Roberts' record on privacy, I was expecting Feingold to be a strong "no." Shows what I know.

In remarks before the vote, Feingold said he takes Roberts' statements on legal precedent to mean he will not legislate from the bench, and especially that he will not vote to overturn Roe v. Wade, or Griswold v. Connecticut, the 1965 decision critical to establishing the right of privacy. Feingold believes that Roberts has reservations about secret courts used under the Patriot Act. If Feingold is right, that's substantial comfort to those concerned about Roberts.

Despite the fact that he was planning to vote to confirm, Feingold spent more time in his remarks criticizing Roberts and the process than praising the nominee. He criticized Roberts for being less than completely forthcoming, especially by not releasing documents relating to his service in the solicitor general's office. Feingold said: "In fact, if not for Judge Roberts's singular qualifications, I may have felt compelled to oppose his nomination on these grounds alone." But, Feingold said, he's spoken to many people about Roberts, and they believe he's a good guy and a qualified jurist, hence the "yes" vote.

As Feingold closed his remarks, the wheels fell entirely off his wagon:
History has shown that control of the White House, and with it the power to shape the courts, never stays for too long with one party. When my party retakes the White House, there may very well be a Democratic John Roberts nominated to the Court, a man or woman with outstanding qualifications, highly respected by virtually everyone in the legal community, and perhaps with a paper trail of political experience or service on the progressive side of the ideological spectrum. When that day comes, and it will, that will be the test for this Committee and the Senate. And, in the end, it is one of the central reasons I will vote to confirm Judge John Roberts to be perhaps the last Chief Justice of the United States in my lifetime.
So, much as Feingold voted to confirm John Ashcroft as attorney general in 2001 in a sort of open-hearted reach across the aisle to the opposition, he's doing the same thing this time. And it's more vain hope than anything else. A candidate nominated by a Democratic president, with "a paper trail of political experience or service on the progressive side of the ideological spectrum" would be thoroughly borked by a Republican-led Congress, as sure as I'm a balding fat man. Why Russ doesn't see this, or doesn't choose to believe it, is a mystery. I guess it proves mostly that it's Democrats who are still clinging to the mummified remains of something called "bipartisanship," years after the Republicans figured out that it's for suckers.

Russ, I love ya, and if you run for president, I'll be with you from the back roads of Iowa to the convention. But you were wrong on Ashcroft, and you're wrong on Roberts. Roberts' refusal to release documents sets a bad precedent, and the idea that he can't say anything substantive about anything that could conceivably come before the court is silly at best and dangerous at worst. (To Feingold's credit, he noted this peculiar situation in his remarks.) The stakes of this nomination--30 years of Roberts as chief--make it too important to take Roberts largely on faith. Yet, in the end, that's what we're left with. The chief-justice-presumptive is a blank slate. What any of us "knows" about Roberts is actually stuff we project upon him based on the lens through which we look.

Feingold remodeled his house in my neighborhood not long ago, and I am guessing he would never have hired a contractor who was similarly secretive about what he'd done in the past and vague about what he'd do in the future. Why that's OK for a Supreme Court justice, I don't know.

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