In a September 13 discussion of ongoing hearings on the nomination of John G. Roberts Jr. to be chief justice, National Public Radio's (NPR) All Things Considered hosted two commentators who endorsed Roberts. Moreover, senior host Robert Siegel failed to disclose that the guests -- Douglas W. Kmiec, Pepperdine University law professor and former head of the Office of Legal Counsel in the Reagan and George H.W. Bush administrations, and George Washington University professor and The New Republic legal affairs editor Jeffrey Rosen -- both agreed on this central question of whether Roberts should be confirmed.
Kmiec, characterized by Siegel as conservative, has endorsed Roberts's confirmation -- and so has Rosen, in a September 12 article for The New Republic (published in its September 19 issue and available online by subscription only) subtitled "Liberals shouldn't fight Roberts." In it, Rosen declared that Democrats should "vote to confirm Roberts as chief justice with gratitude and relief." Neither Siegel nor Rosen disclosed this endorsement. Siegel compounded the infraction by suggesting the two-person panel represented a diversity of viewpoints when he characterized Rosen as having a "liberal heart"; Rosen then clarified that he has a "moderate liberal heart."
In May, Rosen misrepresented an already misleading Republican poll to argue that the public "supports the principle of a filibuster, but not how it is practiced" by Democrats who had blocked a handful of President Bush's judicial nominees, as Media Matters for America documented.
From Rosen's article in The New Republic, in which he claimed that Roberts "might even move the Court to the left," that "Roberts's nomination as chief justice was a peace offering from Bush to Democrats," and that Democrats should "vote to confirm Roberts as chief justice with gratitude and relief":
[T]he claim that Roberts would move the Court to the right as chief justice--and that he therefore deserves greater scrutiny--is transparently unconvincing.
On many questions involving federalism, Roberts's views resemble those of [former Chief Justice William] Rehnquist rather than [Justice Sandra Day] O'Connor, and, in this sense, he would not change the balance of the Court. And, in other areas of concern to liberals--such as his willingness to uphold precedents with which he disagrees--Roberts may turn out to be more concerned about judicial stability and humility than either Rehnquist or O'Connor, which suggests he might even move the Court to the left. The truth is that Roberts's nomination as chief justice was a peace offering from Bush to Democrats and a gift to principled liberal and conservative defenders of judicial restraint. Rather than listening to the siren song of ideological interest groups who are urging them to cast a symbolic but futile vote of opposition, Democrats should instead vote to confirm Roberts as chief justice with gratitude and relief.
From the September 13 broadcast of NPR's All Things Considered:
ROSEN: What should reassure liberals, and much more illuminating than his views about Roe [v. Wade], were that he explicitly disavowed the strict constitutional originalism, the idea that the Constitution should be interpreted in light of the understanding of its framers, of justices [Antonin] Scalia and [Clarence] Thomas. And in a very interesting exchange with Senator [Charles] Grassley [R-IA], he said, "I find those demands, the nuances of academic theory, are dispensed with fairly quickly. Judges take a more practical and pragmatic approach to reaching the best decision." He said, "I'm a bottom-up judge, not a top-down judge. I don't impose a theory from above; I take each case as it comes." That gladdened this particular heart, in any event, because it suggests that he doesn't have a comprehensive theory, and I thought that was good.
SIEGEL: And that's a liberal heart that you're talking about.
ROSEN: Well, let's call it a moderate heart.
SIEGEL: OK, a moderate heart.
ROSEN: A moderate liberal heart.
SIEGEL: Well, Douglas Kmiec, does your conserv -- more conservative heart, in any case, out in Pepperdine -- is it at all cheered by what you heard, or was it dismayed by what you heard on these subjects?
KMIEC: No, I'm cheered, to keep the verb going, because he has stayed very close to the model of an impartial, open-minded judge that he has demonstrated all along since his nomination.