NYT opposes Roberts solely because he won't precommit to votes they'd prefer

It's a very high threshold to cross, but I do believe that this is the most stunningly disingenuous editorial I've ever read in the New York Times. The Times editorialists acknowledge that —

• "John Roberts failed to live up to the worst fears of his critics in his confirmation hearings last week";

• even "[w]eighing the pluses and minuses and the many, many unanswered questions, and considering some of the alternatives, a responsible senator might still conclude that he warrants approval";

• "few lawyers in America can compete with Mr. Roberts in professional accomplishments";

• "[i]f the test were legal skill alone, Mr. Roberts would certainly pass"; and that

• "[i]f he is confirmed, we think there is a chance Mr. Roberts could be a superb chief justice."

And those concessions — all of them blindingly obvious and indisputable — ought to be enough for any President's Chief Justice nominee to be confirmed. But of course, the present President is George W. Bush's nominee, and the shorter and more honest version of this editorial would have read: "Any nominee from this President for anything must be defeated."

Here's the crux of the Times' lie: "[I]n many important areas where senators wanted to be reassured that he would be a careful guardian of Americans' rights, he refused to give any solid indication of his legal approach." If you substituted "commitments as to how he'd vote" for "solid indication of his legal approach," this would be a true statement, and the former is in fact the only thing the Times cares about. The only thing remotely close to a principled reason to oppose the Roberts nomination that the Times advances is his refusal to precommit that on the merits of the most controversial and divisive cases the Court may face, he'll vote for the results the NYT prefers. That's as good as their argument gets, folks.

Well, okay then. If that's the standard, then the Supreme Court is solely a creature of politics. Let's just drop any pretense that we value "the rule of law" or "judicial independence" or "appearance of impartiality and propriety." Let's rename the Supreme Court and call it the "Supreme Soviet" instead. If that's the standard, then with respect to those vacancies that occur when the President and the Senate are controlled by the same party, the Senate will rubber-stamp every nominee; and with respect to those vacancies that occur when different parties control the White House and the Senate, the Senate's role will vanish entirely, and the President will keep the Court functioning solely through his power to make recess appointments that bypass the Senate. If that's the standard, then we've all been wasting our time on these confirmation hearings, and Dubya ought to just go ahead and recess-appoint, oh, say, Karl Rove as Chief Justice the next time the Senators leave town. (There's no constitutional requirement that the Chief Justice be a lawyer, after all.)

The only way a person of even marginal political intelligence could write an editorial like this would be if he's absolutely certain that he could immediately thereafter retreat behind anonymous storm- and logic-proof shutters, from which he's free to pretend that no counter-arguments exist. A three-minute debate would explode this point of view with a violence that would put the Hindenburg disaster to shame. I really do prefer my bomb-throwing revolutionaries without the hypocritical pretense of commitment to principles like "rule of law" and "judicial independence." Give me a Mark Tushnet who straightforwardly says (my paraphrase) "Dems, vote against this guy just because he's Dubya's nominee and you're against Dubya" over the polished, disgusting liars of the New York Times.

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UPDATE (Sun Sep 18 @ 1:00pm): I hasten to add that this nonsense from Phyllis Schlafly is every bit as disgusting to me as the NYT's editorial:

As John Roberts sailed through his confirmation hearings, conservatives stepped up pressure on George W. Bush to choose his next Supreme Court nominee more squarely in the strict-constructionist, Antonin Scalia mold. Another Roberts, according to conservative activist Phyllis Schlafly, would be "a betrayal." Why? Because Roberts left it unclear whether he would uphold Roe v. Wade, and Schlafly and others want a sure vote to reverse it.

From the right or the left, anyone who thinks Roe v. Wade is the only important issue the Supreme Court may face is an idiot. And anyone who thinks judges and justices ought to be picked and confirmed based on their precommitments to vote particular ways in particular cases doesn't understand — and hence is an implied enemy of and/or danger to — the rule of law.

Also, this   editorial from the Washington Post is about as vivid a contrast to the NYT editorial as one could imagine two consistently left-leaning newspapers producing. Key sentences:

[O]n a number of important issues, Judge Roberts seems likely to take positions that we will not support.... These [issues on which he may vote against the way we'd like] are all risks, but they are risks the public incurred in reelecting President Bush.

That almost gets it just right; my only quibble is that the word "risks" imputes a from-the-left frame of reference to the American public that I don't think can be justified, given the result of that election. But otherwise, the WaPo editorial reads like something written by grown-ups who understand the basic premises of both politics and justice. The NYT editorial reads like something written by teenagers who lack that understanding of either, and who're trying very hard, but without success, to hide the fact that they're still mid-tantrum over the last election.

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UPDATE (Sun Sep 18 @ 2:15pm): In her very good post contrasting the two editorials, Prof. Althouse makes some of the same points I've offered here — for example, that "The Times doesn't even face up to the issue of the illegitimacy of binding the nominee to particular outcomes" — along with the very interesting observation that none of the senators ever questioned Judge Roberts about the famous French Fry Case, Hedgepeth. She offers an interesting guess as to why, and I offer a different (and more self-important) guess in her comments.