Wednesday, July 20, 2005

Is Roberts a Conservative?
Ann Coulter has her doubts and thinks Bush has sold conservatives down the river (warning: Drudge), though her support is the lack of evidence to the contrary. But Peter Rubin offers up at least one convincing reason (via ACSBlog), in Roberts' decisions as a judge, to align the nominee's interpretive philosophy squarely with Scalia's.
Roberts wrote that the Metro's mandatory arrest policy was not unconstitutional in part because it would not have been "regarded as an unlawful search or seizure under the common law when the Amendment was framed," that is, under the law as it stood in 1791. He described this inquiry as "the usual first step" in assessing Fourth Amendment cases, but really it is not. Instead, it is part of an approach to the law put forward by Justice Scalia, one that has been used inconsistently at best by the Supreme Court, garnering a clear majority's support in only one Fourth Amendment decision. It is an approach that would in essence freeze our rights as they were in 1791.
Of all the "mistakes" George Jr. is unlikely to repeat from his father, a Souter-like screwup is at the top. Liberals hoping that his lack of a track record may hide a reasonable protection of our rights are falling right into his trap.

But does it matter at this point? Short of a plagiarism scandal or some such thing, there is zero chance he will be denied. Still, highlighting his clear conservative credentials is the best chance--if slim--of keeping Bush off the deep end when it comes to replacing the Chief. We can't have him get away with saying "I replaced O'Connor with a moderate, so we'll replace Rehnquist with a conservative now." We can't stop Bush on this one, but there is potentially value in at least accurately framing what he's doing.

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