Who's Gonna "Shoot" J.R.?

....the Left or the Right?

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The former we'll deal with in substantially lesser detail below. It is the latter that appears to be percolating at a higher rolling boil.

There are a few voices on the right side of the tracks that are already concluding that John Roberts is Souter II and that the President's pick is "all over but the 'growing'". Among them are Ann Coulter, Charles Krauthammer, and Polipundit.

For those conservatives who are alarmed at such a prospect, the following "Souteronomy" from Dafydd ab Hugh ought to be immensely reassuring:

I've been ruminating a lot about David Souter. The myth is that he was thought to be a staunch conservative, but then he "grew in office" once appointed to the U.S. Supreme Court and became a liberal.

But that never made sense to me. People don't typically change in that way. Specifically, I began to wonder: what on earth convinced people, particularly GHWB, that Souter was ever a conservative?

I looked up his professional bio, and it seems he was a superior-court judge in New Hampshire for four years, then served on the New Hampshire Supreme Court for seven before being named to SCOTUS. I doubt there would be much chance to suss out his judicial philosophy as a mere state superior-court judge.

He was named to the NH Supreme Court in 1983; but that was the same year that John H. Sununu became governor. Did Sununu and Souter know each other before that? Souter was the Attorney General, but Sununu appears to have been an engineering professor before becoming governor, so it's possible they didn't really know each other.

What I've gathered is that Souter was something of a protege of Warren Rudman; Rudman was AG for six years, during which time he appointed Souter Deputy State AG; when Rudman retired in 1976, he seems to have hand-picked Souter to succeed him; Rudman also pushed him into his first judgeship two years later.

So if Rudman, one of the most liberal Republicans ever to tread the halls of power, was David Souter's mentor, and if a Supreme Court position opened up in New Hampshire in 1983 (when Rudman was serving his first term as U.S. senator), isn't it likely that it was Rudman, not the newly elected governor who had not been in politics before 1982, who pushed Souter to be appointed to the Supreme Court in 1983?

Governor John H. Sununu might not have known Souter from sauerkraut. So the mere fact that Sununu, a conservative, appointed Souter does not necessarily mean that Souter was any sort of a conservative in 1983. In fact, being so closely tied to Rudman, I would be skeptical.

I can't seem to find anything about Souter's tenure on the New Hampshire Supreme Court. Was he the author of any clearly conservative opinions? He was only there for seven years, but surely he must have had some paper trail... though evidently, he was picked specifically for not having one. It's entirely possible (at least in my mind) that Sununu's recommendation of Souter for SCOTUS was more personal than political, and that Warren Rudman (then mostly through his second term in the Senate) was the primary person pushing him on Bush.

Bush himself was hardly a conservative; he famously referred to Reagan's economics program as "voodoo economics," and of course he raised taxes and pushed many other pieces of legislation desired by the Democrats. Bush was certainly not a conservative when he was a member of the House: he ran for the Senate as a "Goldwater Republican" in 1964 -- and then as a "Nixon Republican" in 1970! Bush ran against Reagan conservatism in 1980, then ran as a "Reagan Republican" in 1988. So I honestly don't see any evidence that Bush would be concerned whether Souter was a conservative or not.

Unless Souter wrote some major conservative opinions on the New Hampshire Supreme Court between 1983 and 1990, I think that there was ample reason in 1990, when he was nominated for the First [Circuit] Court of Appeals, to doubt his cred as a "conservative"... except nobody really looked for it. Since he sat on the federal bench for less than three months before being nominated, again by Bush, for the US Supreme Court, I doubt there was any significant opinion he wrote as a federal appellate judge that would indicate he was a conservative.

So my point is this: if nobody ever really had any good reason to suppose that Souter was a conservative in 1990, then it may well be a myth that he "grew in office" and turned liberal; he may have shared the worldview of his mentor, Warren Rudman, all along - had we but looked a second time. So maybe this prototypical example of the staunch conservative who turned into a liberal on the bench is nothing of the sort; maybe it's just an example of insufficient political vetting by the staff of a president who really didn't give a whoop whether Souter was conservative, liberal, or an intellectual drifter. (And for that matter, perhaps Papa Bush is totally happy with the way Souter has ruled in the last fifteen years.) [emphasis added]

In which case, it wouldn't be precedential at all for Judge John Roberts... who has a very strong track record of judicial conservatism, according to a large number of people, both left and right, who have worked with him over the decades.

We know that Dubya is a lot more conservative than Pappy ever was. And we also know that he was positively "souterphobic," about this decision, as determined to avoid repeating his father's (initial) carelessness in SCOTUS picks as he has been Poppy's tax-hiking and failure to finish the job in Iraq. So I think it can be pretty safely assumed that Judge Roberts won't whip out any surprises, assuming he makes it to Olympus.

Brother Meringoff agrees:

Is Roberts a conservative? Yes, surely. Does he hold a single theory of law that is conservative? Maybe. Would it be better if we knew that he held such a theory? Yes. If it turns out that he doesn't, does that mean he will not be a reliable conservative Justice over the long haul? Not necessarily, and in Roberts' case probably not.

The Weekly Standard's Terry Eastland thinks Roberts will be a significant improvement on Justice O'Connor:

It's hard to see Roberts writing a weak-as-water opinion of the sort O'Connor penned for the Court two years ago in sustaining admissions preferences at the Michigan Law School. Likewise it is hard to imagine Roberts abiding the religion-clause chaos to which O'Connor made major contributions; likely he would, like his former boss Rehnquist, strive for doctrinal clarity. And it is hard to envision Roberts buying into such pretensions to supremacy as came from O'Connor, Souter, and Anthony Kennedy in their dismaying joint opinion in Planned Parenthood v. Casey. At the same time, it is easy to imagine Roberts - who has advised an attorney general and a president, and argued the executive's position in the Supreme Court - being especially aware of the importance of the executive power, at a time when terrorists still threaten America and the world.

Larry Kudlow is positively orgasmic in his enthusiasm for what he calls "the first supply-sider to sit on the Supreme Court":

Roberts is a genuine free-market judge, someone who will not assume that business is always guilty until proven innocent. He should land on the side of limiting damages for personal injury and product liability settlements, which hopefully will include asbestos, medical malpractice, and phony securities lawsuits. He may also be sympathetic to corporate patent-holders of intellectual property, while seeking to oppose local regulators in areas of telecom access, energy development and production, and streamlined power utilities....

Judge Roberts could be the first modern economic conservative to ascend to the Court. Roberts of course knows full well that judicial change occurs slowly at the margin. But as someone who seems to believe in the importance of market forces that allow the entrepreneurial creative juices to flow, he is likely to make a huge difference.

Michael Barone believes a Justice Roberts could "redefine what is the mainstream in American constitutional law":

A Justice Roberts will probably move the court some distance to the right on some issues—though probably not on all those that conservatives would like. But in the process, I think he has the potential to help redefine what is the mainstream of the law. The New Deal justices appointed by Franklin Roosevelt redefined the mainstream of the law very quickly on the major judicial issue of the day: how much economic regulation the Constitution allowed.

Conservatives have been frustrated that over the past 30 years—in which seven of the nine justices have been appointed by Republican presidents—that mainstream has changed little. The confirmation of John Roberts will move the court a significant distance in their direction. [link added]

NRO's Shannen Coffin is satisfied about Judge Roberts' constitutionalist bona fides from his supposedly scarce "paper trail" all by itself.

My take? Heck, I'm no lawyer, nor do I play one on TV. But the above is persuasive to me, and as I posted last week, Roberts seems to me to be far more of a Rehnquist than he does a Souter or (Anthony) Kennedy, both in background and judicial temperment. Which is most likely why Roberts clerked for the Chief Justice.

And why he most definitely deserves the job for which the President has nominated him.

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Meanwhile, back in Tinhatville, Ali Dickbar al-Durbini is about two notches short of demanding that Judge Roberts perform a partial birth abortion as part of his confirmation hearings, Chucky Schumer is preparing his philosophical torquemada, and the left-wing blogosphere is pushing the smear that Judge Roberts is a queer because as a high schooler in 1972 he was photographed wearing golf pants [HT: Reasoned Audacity]. Which I suppose would relegate me to the same category, since I had a pair of trousers just like it back then, only with the knees ripped out. All of which illustrates that hideous fashion styles were a lot more pandemic in the Nixon years than incipient WASP retrograde sexuality.

And to think that's a step up from their attempt last week to "out" his four-year-old adopted son.

And Bill Kristol, he of the scattershot prognosticating, now predicts - predictably - that there will be even worse smear salvos to come:

Supreme Court nominee Judge John Roberts will be targeted by an 11th-hour dirty-tricks campaign designed to derail his Senate confirmation, Weekly Standard editor Bill Kristol predicted on Sunday.

"I think the interest groups will go after him personally," Kristol told his fellow panelists on Fox New Sunday. "It will be tougher and rougher than people now think."

He doesn't, though, think the Democrats will filibuster the Roberts nomination, which would be consistent with an Anita Hill-like strategy, and which the White House, by its flat rejection of Donk demands to turn over every document the nominee has produced since his early grade school spelling papers, is almost daring them to try. Lastly, he forecasts Roberts' confirmation by about a 2-1 margin.

I still think it'll take the constitutional option to get JR through - which appears to be in the realm of possibility - but the outcome will be the same, regardless.

After it's over, and Dems are licking their wounds and gathering what remains of their wits for the next round, they might want to pay heed to Mark Steyn's well-meant advice: If you people want the power to select Supreme Court Justices, win a frakking election.

In the meantime, start talking up and campaigning for Attorney-General Alberto Gonzeles as the next Chief Justice. He's the best your gonna get out of Dubya, and you know he wants him. Now that his Souterphobia itch has been scratched, anything's possible.

And if that doesn't salve your wounds, take solace in this crystal ball:

With, so far, only Ann Coulter stepping outside the conservative consensus and suggesting that John G. Roberts Jr., could be another David Souter, let me be the first to say that the next session of the Supreme Court will see it moving to the left.

And this prediction applies however Roberts turns out.

Justice Roberts is just the first step, keeds. There's still a loooooong way to go.

UPDATE: Brother Hinderaker inters another desperate left-wing anti-Roberts canard, the so-called "Constitution in Exile" movement. Money graf:

In truth, what the left fears is not that conservative judges will follow the liberal lead and create new "conservative rights" that are mentioned nowhere in the Constitution. Rather, the left fears that conservative judges will read the Constitution as written and attribute meaning to the commerce clause, the takings clause, the Second Amendment, and other "forgotten" provisions of that document, while at the same time abandoning the left's project of using substantive due process to impose liberal policy preferences where those preferences fail to command a popular majority. [emphasis added]

For understandable reasons, those are fears that the left prefers not to articulate in public.

Dethroning the crypto-Marxist oligarchy. What a concept. No wonder lefties are wetting their pants - what remains of their world may be coming to an end.

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"Do you hear that sound, Mr. Anderson? That is the sound of inevitability." - Agent Smith to Neo, The Matrix