Marc Thiessen, the Bush Administration torture apologist turned Washington Post columnist, uses his column today to proclaim that Chief Justice Roberts was a failed nominee and Republicans need to ensure that future Robertses never reach the high Court again:
We don’t know if he was suddenly convinced by his liberal colleagues, or simply had a failure of nerve. But the challenge for conservatives is clear: We need jurists who not only have a philosophy of judicial restraint, but the intestinal fortitude not to be swayed by pressure from the New York Times, the Georgetown cocktail circuit and the legal academy.
Roberts’s defenders point to his many other conservative decisions and argue that he is not another David Souter or even another Anthony Kennedy. That may be true. But is that really the standard we want for a Supreme Court justice — they are not another Souter or Kennedy? Shouldn’t conservatives expect Republican presidents to do better and appoint another Scalia, Thomas or Alito? That shouldn’t be too much to ask.
First of all, Thiessen can hardly claim to support judges who embrace “judicial restraint” when he is slamming Roberts for refusing to eradicate the entire Affordable Care Act, toss the entire national health system into chaos, and do so on a theory that rejects nearly 200 years of established law.
Moreover, President George W. Bush, who appointed Roberts in 2005, can hardly be blamed for not anticipating that conservatives in 2009 would suddenly decide that a policy proposal that was conceived at the conservative Heritage Foundation and signed into law by Massachusetts Gov. Mitt Romney would be declared a heresy simply because President Barack Obama embraced it. Indeed, Bush nominated Roberts to the Supreme Court less than two months after Justice Scalia published an opinion which establishes that the Affordable Care Act is constitutional.
More recently, three leading conservative judges rejected the purely partisan argument that Obamacare violates the Constitution. Judge Laurence Silberman, who received the Presidential Medal of Freedom from Bush, upheld the law because the case against it “cannot find real support . . . in either the text of the Constitution or Supreme Court precedent.” Judge Jeffrey Sutton, a former law clerk to Scalia who spent much of his pre-judicial career looking for ways to undermine federal power, nonetheless wrote his own opinion rejecting a challenge to the Affordable Care Act. And Judge J. Harvie Wilkinson, one of the finalists for Roberts’ Supreme Court seat, called the case against health reform “a prescription for economic chaos that the framers, in a simpler time, had the good sense to head off.”
So believing that laws like Affordable Care Act are constitutional wasn’t just the mainstream view when Roberts joined the Court, it was the mainstream conservative view. Only a handful of radicals, such as Justice Clarence Thomas, would have rejected the Affordable Care Act if it had reached the Court in 2005.
But, of course, that is besides the point. The purpose of Thiessen’s column is not really to look back on a nomination that already happened, it is to send out a warning on judicial nominations yet to come. Ultimately, the intended audience for this column are the handful of conservative lawyers who will someday be entrusted with selecting nominees for a future Republican president. And the column’s message is clear: next time, pick someone who will follow conservative orthodoxy, regardless of what the Constitution actually says.