I would urge my fellow Democrats to follow the example of Democrat U.S. Senate Leaders and approach the Roberts nomination with caution and restraint. The judge's judicial decision-making record is simply too thin to allow any immediate, hard-and-fast conclusions about his qualifications. He has not been on the appeals court long enough to establish a lengthy track record. That fact alone says let's not hit the public's consciousness as caricatures of fire-breathing liberal ideologues by trashing the man before he has a fair hearing. Again, unless I've missed something, that is exactly the position adopted by those Democratic Senators who will ultimately vote.

Certainly, Roberts' overall public record of writings, briefs, and positions taken is not something we Democrats could ever positively favor. But a lawyer's prior record as a litigator is not by any means a conclusive guide to his judicial temperament, nor does it rule out his ability to reach decisions based on a fair reading of the facts and the law. Some of the flat assertions some liberals are already making about how Roberts' previous legal briefs and judicial decisions establish beyond a doubt that he is a militant "anti-environmentalist" and rabidly anti-abortion are simply hogwash. Many of those decisions were not an up-or-down choice on the substance of the issue but on finer questions of law that might have influenced the decision of any fair-minded judge. One of his "environmental" decisions that some people are using to hang him, for example, had to do with the lawyerly constitutional issue of how far federal law can extend to protect a particular species that lives and dies within the confines of a single state. Roberts' decision to come down on the side of states' rights might not have been the best one, but it approaches demagoguery to use that one decision to establish his anti-environmental stand. Similarly, one of his decisions on abortion had to do with whether an anti-discrimination stature could be applied to a case involving an abortion clinic. It had nothing to do with being either/or pro-choice or anti-abortion. It's dishonest to claim otherwise.

There is a very serious issue underlying environmental law suits these days. Some conservative judges are ideologically committed to gutting the Commerce Clause as the foundation of many federal environmental laws. If Roberts turns out to be one of those, serious doubts about his qualifications will be raised. But we don't know that yet. Our Democratic Senators don't know that yet. Furthermore, every commentary I have heard or read so far indicates that Roberts is not a judicial ideologue like Thomas, Scalia, and Bork. Conservative, yes, but well within what almost anyone would describe as mainstream conservatism. Not a fanatic, not an extremist. Let's give the man a hearing before we hang him.

Finally, let me pose some simple political issues. Roberts is almost certain to be approved. Suppose that approval comes after weeks and months of vituperative criticism from the left has failed to convince the American people that the anti-Roberts ranks had failed to make a convincing argument? An all-out assault that began even before the man had his fair hearing, an approach that strikes most Americans as un-American. Once more, Democrats will have walked right into the Republican trap of providing us with the opportunity to play to our worst caricatures. They will once more give us the rope to hang ourselves, and we will dutifully place the noose around our necks and jump off the chair. 

Even if Roberts is defeated by a narrow margin, what will we have gained? Those of you already off the block with an all-out assault on Roberts, you owe it to the rest of us to tell us this: What conservative that George Bush will ever nominate is going to satisfy you? Who is this person who has a prayer of receiving enough bipartisan support to be confirmed? And if you can't answer that, what is your strategy? Fight one bloody rear-guard battle after another until the American people are so sick and tired of you that they will rally behind any nominee that the ever-so-reasonable George Bush proposes?

What conservative candidate is going to be BETTER than Roberts?

If the hearings show that Roberts is not a right wing judicial ideologue, shouldn't we save our ammunition for the real fight that is coming for the new Chief Justice? And conserve some of our ammunition for yet more fights over Associate Justices?