I'M HAVING a hard time figuring out who's less rational: the liberal activists campaigning to defeat John Roberts' Supreme Court nomination, or the conservative activists campaigning to support it.
Roberts, of course, is President Bush's widely hailed surprise pick to replace retiring Justice Sandra Day O'Connor. Roberts has won praise from moderate liberal legal analysts such as Cass Sunstein of the University of Chicago and my New Republic colleague Jeffrey Rosen.
Roberts is widely regarded as extremely intelligent. Unlike conservative ideologues such as Antonin Scalia or Clarence Thomas, he prefers not to rewrite legal doctrine with sweeping new decisions. He is not the sort of nominee who you'd think should start a culture war.
Unfortunately, somebody forgot to tell that to NARAL Pro-Choice America, which has launched a new television ad assailing Roberts. The ad itself is highly misleading. It berates Roberts for arguing, during his tenure in George H.W. Bush's Justice Department, that the 1871 Ku Klux Klan Act could not be used to stop antiabortion protesters. NARAL's ad interprets this argument to mean that Roberts would be "a justice whose ideology leads him to excuse violence against other Americans."
But that conclusion is absurd. First, Roberts was acting as an advocate for the administration, not necessarily voicing his own views.
Second, Roberts was not excusing violence. He was merely arguing that a particular law did not apply in this instance. He explicitly wrote of the antiabortion protesters: "No matter how lofty or sincerely held the goal, those who resort to violence to achieve it are criminals."
And strategically, the idea of trying to sink Roberts' nomination is utterly harebrained. As Senate Democrats have admitted, Roberts is going to pass, probably by an overwhelming margin. Even if there was some chance that a freak slip-up could sink his nomination, Bush would simply find another nominee who would probably be even more conservative.
I can't think of any rationale for NARAL's campaign except that the group raised a whole bunch of money for a big Supreme Court fight, so, by gum, it's going to have one.
