In yesterday's speculative diary on
the dimming prospects for a filibuster of the Alito nomination , DHinMI asked if the reason for the Senate Democrats' apparent reluctance to filibuster was the result of their calculating that ideologically, Alito was going to fill the Rehnquist slot on the court, and Roberts the O'Connor slot. Important liberal prededents would be unlikely to face any new threat from Alito's confirmation, and a Justice Alito would not be able to influence the court down the path of rightist judicial activism.
What to make of this? Well, apart from the its vulnerability to the normal pitfalls of attempting to read the minds of politicians, the diary offers no discussion whatsoever of Roberts' record as an attorney or judge, or of his confirmation hearing testimony.
If you have entertained DHinMI's speculation, I highly recommend you check out People for The American Way's
post-hearing report on the Roberts nomination.
Roberts did recognize a constitutional right to privacy, but only in the sense that every justice on the court recognizes such a right in his or her own special way. From pages 16 and 17 of the PFAW report:
"To the contrary [of offering an elaborated notion of the right to privacy], when Roberts was asked whether "there is a right of privacy to be found in the liberty clause of the Fourteenth Amendment," Roberts testified that "I do, Senator. ...I think every justice on the court believes tha, to some extent or another." Roberts, therefore, committed to a right to privacy no broader than that espoused by Justices Scalia and Thomas, which is not much of a right at all. According to Justices Scalia and Thomas, the right to privacy does not encompass a woman's right to reproductive choice, and both ave argued that Roe vs. Wade should be overturned.
Remember that "superprecedent" buzz from the confirmation hearings? The media spin from it Roberts viewed Roe as settled law and that precedent should not be overruled simply because it was wrongly decided. The exchange between Roberts and Specter doesn't offer any reassurance that Roberts would rule along O'Connor lines. He wouldn't go after Roe, hellbent for leather, but he sure might take a look at subsequent precedents, like Casey, and after that revisit Roe. From day two of Roberts' confirmation hearings:
SPECTER: You went on then to say, quote, It's [Roe] a little more than settled. It was reaffirmed in the face of a challenge that it should be overruled in the Casey decision.
So it has that added precedential value.
ROBERTS: I think the initial question for the judge confronting an issue in this area, you don't go straight to the Roe decision; you begin with Casey, which modified the Roe framework and reaffirmed its central holding."
Read the rest of that PFAW report and ask yourself how it possible to assign even a 50/50 probability of Roberts conforming to the O'Connor mold. If the Senate Democrats are backing away from filibustering Alito out of normal timidity, that is awful. If they are backing away because they are counting on Roberts to replace O'Connor, that is dangerous, at least to Beltway commuters. These people, after all, have driver's licenses.
So, as Georgia10 admonished in her wonderful diary yesterday, call your Senator and urge a filibuster of Alito.