Roberts scorned for not being sufficiently activist and political

The attacks being lobbed at Chief Justice John Roberts by his former conservative supporters are far more interesting than the general debate — calling this a debate is being far too generous — taking place over the correctness of his ruling.

Even though it’s right out here in the open, everywhere you look, everyone seems to be missing the larger point.

Conservatives critical of Roberts can’t really base their arguments on the constitution without undermining their own attacks against health care reform and President Obama. If Roberts was wrong, then they can’t pretend that reform is the biggest tax increase in history (it’s not, non-partisan Poltifact found larger tax increases by Ronald Reagan and George W. H. Bush) and then try to use that theory to bludgeon President Obama. The current and much weaker attack being used now by conservatives hinges on them accepting Roberts’ ruling as correct.

But that’s not the point. It’s good politics (and by definition, therefore bad for the country) to take whatever is handed to you to make the best argument you can, and that’s what this sudden and amusing shift is, from the mandate is not a tax so it’s unconstitutional to it’s a tax so that’s another knock on Obama. Any politician or hack would do the same in their place.

Lost in all of that is what conservative critics of Roberts are left with, if not that he’s wrong, it’s that he betrayed the cause. He failed to rule by his own ideology and the ideology of the people who supported him. That argument is logically consistent with what conservatives seem to believe and what they say during elections. It’s pretty rare for a liberal President or candidate to campaign on nominating solidly liberal jurists to the Supreme Court. Despite all the hot rhetoric from the right about liberal activist judges, promises to nominate good conservative jurists are quite common.

Rick Santorum wrote an op-ed for the Washington Times in January, where he criticized Mitt Romney from the right on judges:

There is no evidence that Mr. Romney ever fought for a conservative nominee. [..]

The bottom line here is that it is not enough to nominate judges who say they will not legislate from the bench. Nearly all say that. The next Republican president must nominate and fight for unambiguously conservative jurists who will stand their ground. [..]

Numerous conservative leaders have said that I was the “go-to” guy in the Senate to push for conservative judges. This is a deeply felt cause for me – of both heart and head. We absolutely must get this right.

One conservative commented that Roberts was a “Manchurian fake-conservative”. Rush Limbaugh said that Roberts betrayed America (a synonym for GOP/conservatism for him) before ranting about the IRS being a domestic army.

All that despite the New York Times finding that under the leadership of Roberts, the Supreme Court is the most conservative court “in living memory”, and is likely to remain so for decades more.

That is why talking points about liberal justices legislating from the bench ring so hollow. You won’t find this kind of rhetoric on open display from liberal political candidates. That doesn’t mean that they don’t hold those views, or even that there’s anything wrong with that view. It’s one of a million points of legitimate debate in our political discourse. But you will find calls for and promises of conservative judges at the core of nearly every national Republican campaign.

That’s what makes these attacks on Roberts so predictable. Practical reasons aside, I have no doubt that attacks aimed at Roberts for not being sufficiently conservative and biased are sincere. Many conservatives are genuinely upset, labeling Roberts a traitor (not to the country, as you might expect, but to the Republican Party and conservative ideology) and a fake conservative.

They expected Roberts to rule according to his personal political ideology and according to the platform of the Republican Party, and when he didn’t do that, they were pretty pissed off. These attacks underscore the philosophy on the right that liberal activist judges are bad, not because they are activists, but because they are liberal activists. Conservative activists are more than fine, they are desired by conservatives and promised by conservative politicians.

The right’s problem with John Roberts isn’t that he made the wrong call, it’s that he’s not the kind of biased, activist, legislating-from-the-bench solidly conservative jurist that George W. Bush promised, and people like Rick Santorum still promise today. Santorum explained in clear terms exactly how important getting biased judges is to him and his party, remember? “This is a deeply felt cause for me.. We absolutely must get this right.”

Marc Thiessen, speechwriter for George W. Bush, pondered in a Washington Post op-ed why Republicans are so terrible at picking reliably conservative judges. Perhaps the reason is that conservatives show a little more acumen for picking doctrineist jurists than they themselves or liberals give them credit for, and the real problem they have is picking reliably activist judges who are willing to eschew dogma for doctrine.

That appears true, and if you don’t believe it, just listen to Marc Thiessen:

With George W. Bush’s appointments of Samuel A. Alito Jr. and Roberts, conservatives thought finally they had broken the mold and put two rock-ribbed conservatives on the bench — until last week, that is, when Roberts broke with the conservatives and cast the deciding vote to uphold the largest expansion of federal power in decades.

Thiessen’s complaint is a good example of what has been bouncing around the echo chamber since Thursday. John Roberts didn’t misinterpret the constitution, his sin was breaking from the conservative bloc, for not living up to expectations as a “rock-ribbed conservative” justice that would rule put party first, and country last.

One of Bush’s Press Secretary’s, Dana Perino, is even more disgusted:

Almost across the board, every conservative said he’s a solid guy, he’s the one we want, and now the level of disappointment amongst a lot of people, including myself, is really high.

It should go without saying that these are the same people that were undoubtedly celebrating the judicial legacy of George W. Bush’s nominations, when the Roberts-led court threw out long standing Supreme Court precedent to newly allow unlimited corporate spending in elections in Citizens United, and the unprecedented attack by the court on states rights over guns in Heller v. D.C.. Conservatives weren’t celebrating a victory for the constitution, second amendment, first amendment, and the rule of law in those cases so much as they were celebrating having a biased activist on the court ruling in their favor. Not because I say so, but because that’s the only thing these people seem to care about according to their own statements.

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On a totally unrelated note, go and read this post by Greg Sargent about just how abysmally fucked Mitt Romney is over health care, due to RomneyCare. Romney made a pledge to repeal the PPACA on his first day in office as president, which is physically impossible since only Congress can do that and Congress can’t move that fast (even if the GOP controls all of it, and they probably wont.) But ever since then the Romney campaign has gone silent about health care.

The bottom line: despite public opposition to the PPACA, it’s still going to be a net positive for Obama because of RomneyCare. Obama can talk up the good aspects of the “ObamaCare” and defend it, and Mitt Romney can’t win no matter what he does.

Paul Tenny

Paul Tenny

I'm not a journalist but I do it anyway. I cover elections and have interviewed television writers and producers.
Paul Tenny

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