How Has His Fitness Changed?

As much as those on the far left, both within and without the Senate, would prefer that John Roberts not serve on the Supreme Court at all, one would think that the recent decision by President Bush to nominate him for the position of Chief Justice would be the source of much despair. But chances are the most liberal among the Washington players are thanking their lucky stars for this new angle from which to challenge Mr. Roberts’ nomination.

In recent weeks it had become evident that, although there is little question that Judge Roberts is more conservative than most on the left would prefer, the support for his appointment as Associate Justice was too great to overcome. Facing upwards of seventy votes in his favor, liberals had resigned themselves to accepting that the battle to keep Mr. Roberts off the High Court was lost. But the death of Chief Justice William Rehnquist last weekend and the President’s decision to move Roberts to the center chair on the Court have many on the left believing the game is afoot once again, and the comments of prominent leftist Senators reflect this.

In this context, however, one should keep in mind that the job of Chief Justice, in reality, has no greater impact on the direction of American law and jurisprudence than the job of Associate Justice. The fact is that the greater responsibilities and authorities placed on the Chief have primarily to do with administrative functions rather than judicial ones. Like the eight Associates, he has but one vote when decisions are rendered, his greatest power in this regard being the assigning of the writing of decisions once they have been made.

Nevertheless, as has increasingly become their custom in recent years, those on the left of the Democrat party are relying heavily on the assumption that Americans are ignorant and malleable enough to be moved to widespread opposition to Mr. Roberts – if not as an Associate Justice nominee, then as Chief Justice nominee.

Minority Leader Harry Reid, Ranking Judiciary Committee Member Patrick Leahy, and perpetual blowhards Edward Kennedy and Charles Schumer are among the liberal Senators who, following President Bush’s Monday morning announcement regarding Judge Roberts, were rushing to any microphones they could find to announce that this development meant that Judge Roberts should be held up to even greater scrutiny as the nominee to replace the late Mr. Rehnquist.

But what the major media outlets have – unsurprisingly – failed to do is press the Senators to explain why this is so. “What is it,” it should be asked, “That could make someone unqualified to be Chief Justice while yet being qualified to be Associate Justice?”

Of course, the answer to that question is: Nothing. Nevertheless, one should not be surprised to start hearing a small number of Americans “on the street” echoing this sentiment, without really being able to explain why it is so. After all, the title sounds more significant, surely there must be some greater legal power the Chief Justice has. But considering how often in recent years Chief Justice Rehnquist found himself casting a vote for the losing side in high profile cases, one can’t help but wonder how he would feel about this sentiment.

The bottom line to all this is that the Democrats are treating vacancies on the federal judiciary as political positions to be filled, and are conducting campaigns regarding these positions accordingly – with the assistance of major left-wing activist groups – the animating idea being that a sufficient number of Americans can be duped into supporting their position and pressuring the White House to back off its choices. Senator Kennedy as much as acknowledged this when, as reported at CNSNews.com, he recently noted that the catastrophe on the Gulf Coast is making it difficult “for the American people to participate” in the selection of the next Chief Justice.

But even this is either a statement based on ignorance itself, or at least one that relies on the Constitutional ignorance of the average American. There is no provision in the law for the public to “participate” directly in the federal judicial selection process. The public’s role in this process is to elect the President and Senate who will participate directly. And, if memory serves, at the last such opportunity to elect these players, the public put Republicans in power within both institutions. Looks like the reliance on the ignorance of the people isn’t working out too well.