Why Roberts Should Observe the Omerta

Sure, I’d like to know what makes John Roberts tick, but if I were him, I wouldn’t say a darn thing during the Senate hearings. While in an ideal world we would be able to have an intelligent discussion about a nominee’s judicial views, I don’t think it is possible to have such a discussion in today’s media. Legal reasoning involves nuance–a judge may take a position that sounds absurd on the surface, but upon further review of the legal grounds, it makes sense. A good judge may rule to uphold a law he abhors, or strike down a law he supports. But all of this will get lost in headlines and sound bytes which are designed to strip away nuance. This is especially true when you have liberal groups that have raised millions of dollars to sabotoge any Bush nominee. Whatever Roberts says will be oversimplified and quoted completely out of context by these groups in an effort to embarrass him.

Quiet Home Front

The New York Times ran this article about how the War on Terror has demanded very little sacrifice on the part of Americans. Here’s the gist:

The Bush administration’s rallying call that America is a nation at war is increasingly ringing hollow to men and women in uniform, who argue in frustration that America is not a nation at war, but a nation with only its military at war.

From bases in Iraq and across the United States to the Pentagon and the military’s war colleges, officers and enlisted personnel quietly raise a question for political leaders: if America is truly on a war footing, why is so little sacrifice asked of the nation at large…

“Nobody in America is asked to sacrifice, except us,” said one officer just back from a yearlong tour in Iraq…

“For most Americans,” said an officer with a year’s experience in Iraq, “their role in the war on terror is limited to the slight inconvenience of arriving at the airport a few hours early…”

This issue has been eating at me for years and I believe that the nation will have to get on a war footing in order to defeat our current enemy. The internal debate that I have is whether the absence of shared sacrifice is attributable to poor leadership or changing times. Has the United States reached a tipping point, an age of decadence where even a primitive outside threat is enough to expose weaknesses and divisions within us and trigger our decline and fall?

There’s no doubt that in the days after Sept. 11, President Bush did a lot to create a dichotomy between civilian and military life. The idea was that the military was going to take care of things, and we should get back to our normal lives. He seemed more concerned with making sure people would still shop at the Pottery Barn than he was in telling people what they could do to help the war effort.

There is an argument to be made for how normalcy could be a part of the war effort. One of the aims of terrorism is to disrupt day to day life. Returning to normalcy in the wake of the attack may have been the best way of thumbing our noses at the terrorists, showing them that we wouldn’t be intimidated and convincing them that their efforts are futile.

There is also the argument that we need a strong economy to support our military, and since two-thirds of the economy is based on consumption, going to the Pottery Barn is indirectly supporting our military.

But the enemy we face is unlike any other we ever have. While militarily weaker, our enemies are willing to blow themselves up in order to maximize the death toll they inflict on us. We may luck out and defeat them by being half-assed. But it’s much more likely that defeating them will require that our entire nation is unified behind that very purpose.

As my friend Jerry, a West Point graduate, put it to me in an email on this subject, “As a veteran of the mid-90s military, I can tell you that the civilian/military dichotomy already existed–Bush just missed a one-of-a-kind chance to remove it.”

To Bush’s defense, he is governing in a media-saturated age, under fire from organizations such as the ACLU and Amnesty International.

In World War II, you had prominent Hollywood filmmakers, such as Frank Capra, making movies on behalf of the war effort. To some of today’s intellectuals, it may be a sign of the triumph of artistic freedom that today we get to see Michael Moore’s “Fahrenheit 9/11” instead of a modern version of Capra’s World War II films, which to them are cheesy patriotism. But whether they like it or not, it was the spirit embodied in those Capra movies of that old-fashioned, cheesy, patriotism, that enabled us to defeat the Nazis.

As a long-term optimist, I have faith in the character of America and believe that we will eventually be fully mobilized into action. But as a short-term pessimist, I fear what will have to happen to get us to that point. If Sept. 11 didn’t do the trick, what will?

Three-Fifths Iraqis?

The Carnegie Endowment for International Peace has translated a draft of the new Iraqi Constitution (hat tip Balloon Juice). A clause in Article I, Section 3, states:

Any individual with another nationality (except for Israel) may obtain Iraqi nationality…

It’s unfortunate that one thing Iraqi lawmakers are able to agree on is that they hate Israel. But I’d like to propose a compromise. What if Israelis can become citizens, but are only considered “three-fifths persons“?

O’Connor’s Importance

A front page story from today’s Washington Post reads, “There was no more important seat on the court than O’Connor’s…” This is a canard that has been repeated over and over again in the media. It is true that O’Connor was a swing vote on many important issues and that her vacancy is more significant than a Rehnquist retirement (in which case we’d just be trading one conservative for another). But how could someone argue that her vacancy has more of an impact on the court than if a liberal justice such as Ruth Ginsburg retired and was replaced by a conservative?

John G. Roberts, Jr.

I am neither elated nor alarmed by President Bush’s choice. While pundits and legal scholars will spend the next few months debating what kind of justice John G. Roberts will make, given what little paper trail he has left behind him, I take any such exercises with a grain of salt. The truth is that, should he be confirmed, it will take years for us to find out what kind of judge Roberts is. Any arguments Roberts made as a private attorney or deputy solicitor general (for example the brief that said Roe was “wrongly decided and should be overturned”) carry the caveat that he was just speaking on behalf of his client. He did not amass a substantial archive of decisions to pore over during his short stint on the DC Circuit.

President Bush has said he would select a justice in the Thomas/Scalia mold. I’m hoping that Roberts turns out to be more of a Thomas than Scalia. While the media typically lump the justices together, Thomas has proved himself the more consistent defender of the constitution. On the Raich decision, for instance, Scalia concurred with the majority that drug enforcement officials could prosecute citizens who were cultivating marijuana for their own personal, medical use. Thomas rightly argued in a dissenting opinion that “If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything–?and the Federal Government is no longer one of limited and enumerated powers.”

With all this said, I think there’s no doubt that Roberts will be confirmed, barring some extraordinary revelation. The Republicans have 55 votes in the Senate, so all they need is to peel off five Democrats to avoid a filibuster. The moderate Democrat Sen. Joe Lieberman already described Roberts as being “in the ballpark.” Democrats have conceded that he’s well qualified, only offering token opposition about how he’s going to have to clarify his views in Senate hearings. Even liberal advocacy groups have been forced to issue tepid statements about how his nomination “raises concerns.” As far as I’m concerned, this is all made for TV. The media has been expecting a bare-knuckled brawl over the nomination, and nobody wants to disappoint.