- The Washington Times - Wednesday, August 31, 2005

For some public officials, The Honorable isn’t just a title but a description, and John Roberts is starting to look like a combination of Mr. Clean and Judge Parker.

Day after day during the August congressional recess, the president’s nominee for next associate justice of the U.S. Supreme Court has been the target of one jab after another. Not one has landed or come close to landing.

Some have boomeranged, like that awful anti-Roberts commercial from NARAL Pro-Choice America. It tried to identify the judge with the bombing of an abortion clinic, and it succeeded only in ousting NARAL’s communications director; he resigned amid the ensuing backlash.

And so it has gone. One criticism of the judge after another has been floated, and one criticism after another has sunk. But not before this last week has it been so clear just how weak the arguments have become against his confirmation.

This was the week Chuck Schumer, senior senator and constant Democratic nudnik from New York, joined Russ Feingold, his counterpart from Wisconsin, to question Judge Roberts’ ethics. Why? He didn’t recuse himself from a case involving the federal government after he was interviewed for a possible promotion.

The senators seem to think, or may just want others to think, that John Roberts not stepping aside under those circumstances constituted some sort of conflict of interest. (The unanimous appellate decision in which Judge Roberts joined was the one upholding the legality of military tribunals for suspected terrorists.)

But consider: John Roberts was first interviewed for the nomination to the Supreme Court in April 2005, days before he started hearing the arguments in Hamdan v. Rumsfeld. At the time Judge Roberts could not have known he would be the administration’s pick for the court.

And neither could the various other judges who were interviewed at the same time. Should they, too, have separated themselves from any case involving the government? Other than shutting down a good part of the federal judiciary, what would that have accomplished?

Think of the precedent that would be set if, whenever a judge is interviewed for a higher post, he or she has to step aside. If the White House wanted to prevent a particular judge from ruling on a case it considered important, it would only have to interview him or he for a government job. (No need actually to appoint said judge to anything.) Such a strategy would surely be among the first to occur to some sharp government lawyer, and Washington has to be full of ‘em.

Should a judge be required to recuse himself from important cases because he might be nominated for another judgeship? That sounds like a good idea only if you don’t think through all the ramifications.

Ah, but Sens. Schumer and Feingold, the clearest thinkers since Abbott and Costello, note that Judge Roberts recused himself from a case involving the American Bar Association when it was considering how to rate him as a nominee.

Sure. That was after his formal nomination for the court and while the ABA was weighing his qualifications. (It found him well qualified.) That’s a whole different kettle of ethics.

When John Roberts was first interviewed by the administration in April, three months before it chose him as its nominee, Sandra Day O’Connor hadn’t even resigned, and it was still widely assumed the next opening on the Supreme Court would be created when its ailing chief justice, William H. Rehnquist, would step down. Remember?

Well, the chief justice is still chief justice and Messrs. Schumer and Feingold are still raising cockamamie objections to the president’s nominee. It isn’t John Roberts who is playing the political games here.

At this still early stage, it is these strained arguments against Judge Roberts’ confirmation, with their unmistakable tinge of desperation, that offer the clearest evidence yet John Roberts is indeed well qualified for the court. Even if the American Bar Association, no stranger to political games, says so.

Whatever the confirmation hearings’ outcome, there is one law that won’t be affected by the next Supreme Court associate justice. And that’s the law of unintended consequences, still very much in effect: Two senators question a judge’s ethics and only raise questions about their own judgment.

Paul Greenberg is a nationally syndicated columnist.

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