His Wife's Actions Should Reflect Poorly on Him

Welsh notes

His wife is in charge of a pro-life organization so extreme that they wanted Schiavo kept half-alive in a vegetative state.

I think it is unfair to taint John Roberts with the actions of his wife. First of all, John is not his wife. Husband and wife don't always agree. Unless John has made similar statements, we can't assume he agrees with his wife on Schiavo.

But second, even if John did agree with his wife, personal opinions do not, in theory, determine one's rulings from the bench. Rulings from the bench are based on an interpretation of the law, not one's preference of what the law is. True, some justices seem to allow their preferences to shape their rulings, but we have to show that John Roberts is such a judge before we accuse him of it. If Roberts is indeed a Scalia clone, the chances are that Roberts will not allow his personal opinions to determine his rulings.

Roberts and the Geneva Convention

Welsh alleges that Roberts

has given George Bush the right to ignore the Geneva conventions, in direct contradiction to the part of the constitution that makes any treaty part of the law of the land.

Welsh is clearly referring to the Hamdan v. Rumsfeld ruling that was handed down by the DC Circuit Court of Appeals on July 15. The ruling of the panel that included Roberts was unanimous and it ruled against the claim of Hamdan that the Geneva Convention required that he be tried by court marshal instead of by military commission. Welsh's reading of this ruling is incorrect.

The basis for the ruling is that that it is the long standing interpretation of US law that the Geneva Conventions, while the law of the land, do not confer rights on individuals that can be enforced by US Court (they may be enforced in other ways, such as, by international diplomacy):

“Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.” U.S. CONST., art. VI, cl. 2. Even so, this country has traditionally negotiated treaties with the understanding that they do not create judicially enforceable individual rights. See Holmes v. Laird, 459 F.2d 1211, 1220, 1222 (D.C. Cir. 1972); Canadian Transport Co. v. United States, 663 F.2d 1081, 1092 (D.C. Cir. 1980). As a general matter, a “treaty is primarily a compact between independent nations,” and “depends for the enforcement of its provisions on the interest and honor of the governments which are parties to it.” Head Money Cases, 112 U.S. 580, 598 (1884). If a treaty is violated, this “becomes the subject of international negotiations and reclamation,” not the subject of a lawsuit. Id.; see Charlton v. Kelly, 229 U.S. 447, 474 (1913); Whitney v. Robertson, 124 U.S. 190, 194-95 (1888); Foster v. Neilson, 27 U.S. (2 Pet.) 253, 306, 314 (1829), overruled on other grounds, United States v. Percheman, 32 U.S. (7 Pet.) 51 (1883).

While I would agree that this arrangement neuters the point of the Geneva Conventions and should probably be remedied by Congress, the fact is that Roberts did not give Bush the right to ignore the Geneva Conventions; he merely upheld precedent, one which the DC Circuit is not capable of overturning because the precedent was set by the Supreme Court.

Unless you want Roberts to ignore precedent, he can't be accused of giving Bush the "right to ignore the Geneva Conventions."

Filibustering by the Democrats

While I can see why you want the Democrats to filibuster Roberts's nomination, I don't think the Democrats are avoiding a filibuster just because they're gutless. They're avoiding it because the costs of doing so are enormous.

First, the Republicans in the Gang of 14, who made a deal to set the threshold for allowing filibuster very high, do not seem convinced that Roberts is a radical for whom a filibuster is warranted. If the seven Democrats in the G14 decide to filibuster, you can expect the seven Republicans to support the rest of the Republican Senate caucus in eliminating filibuster provisions. And then, Roberts will be confirmed easily. Because of the G14's pact, you won't get a filibuster unless the seven Republicans are convinced that a filibuster is warranted. Otherwise, the Democrats are going to throw away their right to filibuster, and they're not going to give that up for obvious reasons.

And second, if the public is not convinced that Roberts is worth filibustering, then the Democrats will come out looking very bad from this ordeal. True the Schiavo polling numbers could potentially hurt Roberts. But they could also hurt the Democrats if the public thinks that linking Roberts to his wife's actions is unfair. And it could hurt Democrats if the public thinks that Schiavo really isn't enough to tar Roberts (which I think is a likely outcome).

Simply put, the Democrats aren't going to filibuster unless they know that they can both protect their filibuster rights, and escape public outrage. Right now, they don't think they can win this fight so they're muting their attacks on Roberts.