So now we know: it's John Roberts for the Supreme Court. The main focus of debate on the pick will undoubtedly be Roberts' statement on abortion, while serving as deputy solicitor general Bush I, declaring that Roe v. Wade was wrong. This is the only "controversial" angle cited by the NY Times' loving – not to say groveling – profile this morning, which then goes on to give Roberts an alibi, if he wants it: that he was only dutifully stating the government's position at the time.
But all of this is a smokescreen. The NY Times doesn't even mention Roberts' most dangerous decision, issued just last Friday, when, as part of a panel of appeals judges, he upheld Bush's outrageous claim of dictatorial powers: the right to dispose of anyone he arbitrarily designates an "enemy combatant" as he sees fit; in this case, sending them to the kangaroo court "military tribunals" he has concocted.
I'm writing more extensively on this case for the Moscow Times later this week, but here's the gist: Roberts' decision is part of an on-going process of elevating the president beyond the reach of law -- essentially a slow-rolling coup d'etat, replacing the old American Republic (or what's left of it) with an authoritarian "Commander-in-Chief State." (Deep Blade has more examples of this process here.) How so? Here's a preview of the column:
"The principle of arbitrary rule by an autocratic leader is being openly established, through a series of unchallenged executive orders, perverse Justice Department rulings and court decisions by sycophantic judges who defer to power – not law – in their determinations. What we are witnessing is the creation of a "Commander-in-Chief State," where the form and pressure of law no longer apply to the president and his designated agents. The rights of individuals are no longer inalienable, nor are their persons inviolable; all depends on the good will of the Commander, the military autocrat.
"[Through a series of executive orders and presidential directives, beginning in October 2001] George W. Bush has granted himself the power to declare anyone on earth – including any American citizen – an 'enemy combatant,' for any reason he sees fit. He can render them up to torture, he can imprison them for life, he can even have them killed, all without charges, with no burden of proof, no standards of evidence, no legislative oversight, no appeal, no judicial process whatsoever except those that he himself deigns to construct, with whatever limitations he cares to impose. Nor can he ever be prosecuted for any order he issues, however criminal; in the new American system laid out by Bush's legal minions, the Commander is sacrosanct, beyond the reach of any law or constitution.
"[In last week's decision, Roberts and his fellow judges] ruled that the Commander's abitrarily designated "enemies" are non-persons: neither the Geneva Conventions nor American military and domestic law apply to such human garbage. Bush is now free to subject anyone he likes to the "military tribunal" system he has concocted – a brutal sham that some top retired military officials have denounced as a "kangaroo court" that will be used by tyrants around the world to "hide their oppression under U.S. precedent."
The column will explore the implications of this decision in more detail. But the fact is that Roberts -- this affable "insider," this "regular guy" from Indiana -- will now be implementing the anti-American principle of unlimited presidential authority on the highest court in the land. Too bad the NY Times doesn't think this is controversial.
Meanwhile, regarding the Roberts' nomination, let me cry out with Hamlet: "O my prophetic soul!" I'm not often this right when I peer into the crystal ball, but I do think that Bush's pick is pretty much along the lines I predicted here on July 4, when I wrote:
"For what it's worth, here's my prediction on Bush's Supreme Court nominee: it won't be any of the "hot-button" prospects (Gonzales, Pryor, etc.). It will be some Federalist Society apparatchik who has plugged along for years, quietly, unnoticed, issuing consistently right-wing rulings but with a minimum of overheated Borkian/Scalian rhetoric.
"It will be someone who will evoke this kind of reaction among the "conventional wisdom" clique (Richard Cohen or E.J. Dionne, say): 'At first glance, at least, President Bush has made a surprisingly solid pick for the Supreme Court: a conservative to be sure, but no ideologue, no firebrand. All the lefty bloggers and anti-Bush activists out there may yet dig up some skeletons, of course, but at the moment, we applaud what looks to be an act of genuine statesmanship by the president.'
"This first impression won't last, of course. Unsavoury facts about the nominee's hardcore ideology and slippery ethics will indeed emerge. But that first CW impression will have taken hold, and the subsequent opposition to the nominee will be increasingly portrayed as arcane nit-picking and partisan spin."
I think we'll see things play out along these lines, although given Roberts' impeccable "insider" credentials -- cited so approvingly by the Times today -- the "slippery ethics" angle might not come into play. Unlike some of the other candidates considered by Bush, Roberts never sought an elected judicial post, so we won't have the usual conflict-of-interest contributions that Bushist apparatchiks normally glory in.(Revised from earlier post.)