I Agree With Mr. Ponnuru

National Review is a place we like to venture at least once a day. Ramesh Ponnuru—a noted columnist for the site—like me disagrees with Ann Coulter’s assertion made in a controversial piece from yesterday. It was not "controversial" to the Left, but for the Right. Many people know Ms. Coulter, and respect her. They may not agree with her, but they respect her. Here, at the Asylum, one of us has a cutting wit that is very close to hers, but they do not overdo it. The humor, as I have learned, is not the key to a post. The facts are.

Ms. Coulter paid little attention to the facts about Judge Roberts, seized on the idea that he is a stealth candidate, and immediately equated him to Souter. Before I post up Mr. Ponnuru’s comments, I would like to address another mistake she has made. Judge Roberts is anything but a stealth candidate. He is on many a short list of people following this process, including one that Thomas posted last weekend that I wholeheartedly endorsed. By endorsing that list, I believe I also supported Judge Roberts on our list. (I believe he was Number Two on our list.)

ANN COULTER VS. JOHN ROBERTS [Ramesh Ponnuru]

I think she raises some points worth pondering in her column, but ultimately I disagree with her.

She wants a justice who will vote to overturn Roe. So do I. She dislikes the stealth-nominee strategy. So do I. She thinks that it is possible that he could end up compiling a record like the one Souter has. And it is possible; those of us who defend him now may end up having reasons for regret.

Likewise, I, too, would like to see Roe overturned. And I must agree with Mr. Ponnuru that should Roberts turn into a Souter, we will all have egg on our face, and Ms. Coulter can gloat. But I doubt it will happen.

But while it is possible that a nominee who openly pledged that he would vote to overturn Roe could get confirmed, it is not at all obvious. There are at least 50 senators who support Roe. A definitely-anti-Roe nominee might be able to win some votes from pro-Roe senators, but no Republican nominee is guaranteed the votes of every anti-Roe senator. (Reid and Pryor might find ways to vote with their caucus.) So it may be necessary to nominate someone who is not 100 percent certain to vote against Roe.

There is certainty in nothing, aside from the occasional Lefty nut, like those from DailyKos. But I believe both Thomas and I have stated that he should be answering no questions regarding a potential case. As Thomas posted today, an abortion case is coming to the court in the next session. It is not about the act, but whether or not parents should be notified of such an act. But for him to speak about it might force him to recuse himself of the case. Scalia was forced to do this in Newdow because he made some rather pointed remarks about the Pledge, and especially about the phrase "under God" within it.

There aren't many possible nominees who would provide that certainty. Michael McConnell has, for example, strongly criticized Roe. But he has never, to my knowledge, said that it should be overturned; it's possible that as a justice he would consider himself obligated to re-affirm the precedent. And again, going any further would at least imperil confirmation.

Which is precisely what Roberts stated the first time he went up for confirmation hearings. The man stated that it was "settled law" of the land, which means that he would abide by precedent. However, shold the Supreme Court have the brains and the fortitude to revisit Roe, in it’s entirety, then that precedent has a chance of being overturned. It is not up to Roberts whether or not they will do that. It is up to the Court as a whole.

But the fact that someone isn't certain to vote a particular way does not mean that we can't make inferences. The pro-choicers are, I think, correct to suggest that Roberts's participation in the Rust v. Sullivan brief raises the likelihood that he would vote to overturn Roe. It's not dispositive, but it does establish that he's not so favorable to abortion rights that he felt it necessary to resign or refuse as a matter of conscience to participate in the case. The fact that Roberts's wife is pro-life isn't dispositive, either, but obviously it raises the likelihood, too.

As to Robert’s wife, her personal views are irrelevant unless Roberts admits that his wife influenced him in that direction. I find that difficult to comprehend. Abortion is an emotionally-charged issue with people on both sides set in their ways. Rarely (You would have a higher chance of being struck by lightning) does our side switch to theirs, and vice-versa. There is strong evidence to support the idea he would be willing to vote in favor of overturning Roe, provided the case was readdressed.

In the cases of O'Connor, Kennedy, and Souter, we didn't have these pro-life clues, and indeed in some cases we had some clues that went the other way--strong ones in the case of O'Connor.

That is true. O’Connor gave almost every impression that she was against Roe, and she was a severe disappointment. To be truthful, she was quite disappointing in several cases regarding this nation, our rights, and the basic tenets and text of the Constitution.

So I think Roberts is likely to make the right decision on abortion, and that is among my reasons for supporting him. But the fact that none of us can be certain is one of the things that may get him confirmed. I certainly hope that pro-lifers (and conservatives generally--as I've argued before, I think that Roe is a useful albeit imperfect index for the other views we should want in a judge) don't get taken again, but I think there's a case for hopefulness.

There is hope on the horizon in John Roberts. That is a hope we must hold onto. There is nothing truly certain in the world. That is a reiteration from earlier, but it is true. Roberts may jump. It will be a shame if he does. But I believe that he will not. Had a conservative jurist, like Michael Luttig, been named, the knives would have been out on Tuesday night. But the Left was eerily silent on him. No one really threw a punch until Wednesday morning. Fools like Kennedy, Boxer and Durbin took their swipes, but even today, Boxer admitted that she sees nothing that would force a filibuster.

As it stands right now, Ms. Coulter is wrong. I stand by that statement. We will not know, one way or another, until the new session begins. Should Roberts make the Souter switch, I will eat my words, make an apology here to her, and slam the hell out of Roberts in ways that only we here, at the Asylum, can.

The Bunny ;)