Blindly battling over Roberts

I’M HAVING a hard time figuring out who’s less rational: the liberal activists campaigning to defeat John Roberts’ Supreme Court nomination, or the conservative activists campaigning to support it.

Roberts, of course, is President Bush’s widely hailed surprise pick to replace retiring Justice Sandra Day O’Connor. Roberts has won praise from moderate liberal legal analysts such as Cass Sunstein of the University of Chicago and my New Republic colleague Jeffrey Rosen.

Roberts is widely regarded as extremely intelligent. Unlike conservative ideologues such as Antonin Scalia or Clarence Thomas, he prefers not to rewrite legal doctrine with sweeping new decisions. He is not the sort of nominee who you’d think should start a culture war.

Unfortunately, somebody forgot to tell that to NARAL Pro-Choice America, which has launched a new television ad assailing Roberts. The ad itself is highly misleading. It berates Roberts for arguing, during his tenure in George H.W. Bush’s Justice Department, that the 1871 Ku Klux Klan Act could not be used to stop antiabortion protesters. NARAL’s ad interprets this argument to mean that Roberts would be “a justice whose ideology leads him to excuse violence against other Americans.”

But that conclusion is absurd. First, Roberts was acting as an advocate for the administration, not necessarily voicing his own views.

Second, Roberts was not excusing violence. He was merely arguing that a particular law did not apply in this instance. He explicitly wrote of the antiabortion protesters: “No matter how lofty or sincerely held the goal, those who resort to violence to achieve it are criminals.”

And strategically, the idea of trying to sink Roberts’ nomination is utterly harebrained. As Senate Democrats have admitted, Roberts is going to pass, probably by an overwhelming margin. Even if there was some chance that a freak slip-up could sink his nomination, Bush would simply find another nominee who would probably be even more conservative.

I can’t think of any rationale for NARAL’s campaign except that the group raised a whole bunch of money for a big Supreme Court fight, so, by gum, it’s going to have one.

The battle lines on the Roberts’ nomination had already hardened before this newspaper reported last week that Roberts had done pro bono work on behalf of gay-rights groups in Romer vs. Evans, a 1996 case establishing protections for homosexuals against state discrimination. Unlike Roberts’ work for the Bush administration or in private practice, in which his role is to advocate his client’s view, pro bono work really does tell you something about Roberts’ personal beliefs. And given the fact that gay rights is a major new frontier in the legal and cultural wars, conservatives ought to be highly alarmed.

DESPITE ALL THIS, conservative groups such as James Dobson’s Focus on the Family continue to staunchly back Roberts. It’s hard to convey just how weird that is, given the radicalism of Dobson’s views on social issues in general and gay rights in particular.

How far out is Dobson? He disseminated a guide in one of his 2002 newsletters on how a father can prevent his son from turning gay. The advice included roughhousing with him, teaching him to throw and catch, showing him how “to pound a square wooden peg into a square hole in a pegboard” (No, I didn’t understand that one either), capped off with this: “He can even take his son with him into the shower, where the boy cannot help but notice that Dad has a penis, just like his, only bigger.”

The point here is that Dobson is not merely conservative, he’s certifiable. And, needless to say, he’s not a big fan of Romer vs. Evans. Yet now Dobson is working to put one of the lawyers who gave his time to the gay-rights cause -- for free! -- on the Supreme Court.

To be sure, Roberts is probably a bit to the right of O’Connor. But Bush could easily have appointed a justice who’s more than a bit to the right of O’Connor. Wing nuts such as William Pryor and Janice Rogers Brown had already won majority support for lower positions, and Bush could have gotten them on the high court with minimal effort. But Bush reserves his political capital for unpopular right-wing economic policies. He almost never expends it on social issues. Why should he, when pliant social conservatives will flock to the polls for the GOP regardless?

A Washington Post reporter once called religious conservatives “disproportionately poor, uneducated, and easy to command,” a line for which he has since apologized and which has been cited endlessly as an example of the media’s anti-religious bias.

I’m not sure about poor and uneducated, but the “easy to command” part seems pretty dead on.