Breathtaking! (Or, if he says he's against child labor, will you support him?)

No, not the President's selection of DC Circuit Judge John Roberts as his choice to replace Justice O'Connor on the Supreme Court, though it is a thrilling selection. Rather, I find myself short of breath after reading this putatively restrained editorial in tomorrow's NY Times. The restraint here is that the Times does not take a position on Judge Roberts--yet. They want to wait until he fails to give sufficient evidence of being like Justice O'Connor. Or their fantasy of Justice O'Connor. But before we get to the legal absurdities of the piece, let's look at the extraordinarily overheated rhetoric. Here's a choice bit:

If extremists take control of the Supreme Court, we will end up with an America in which the federal government is powerless to protect against air pollution, unsafe working conditions and child labor.

Now, who was it that let the word out? Was it you Phocion, or you Helvidius, that gave away the secret notes from the Federalist Society meetings where we all dreamt of a future of employing kids to make socks even more cheaply than Chinese prison labor? It's really hard to imagine how even the editors at the New York Times thought that line was appropriate for a "real" newspaper, rather than, say, Mad Magazine. Does anyone believe we need the Federal government's help to stop those darned states (especially the red ones) from approving of child labor? Let's grant that some states would not adopt the position of the EPA if somehow we were to return to a federal government of limited powers (by, say, adopting something like that wildly moderate Justice O'Connor's position in Raich); they might even differ from the approach of OSHA. But CHILD LABOR? Were these people never read the story of the boy who cried wolf?

But wait, there's more! As in the very next two sentences:

There are reasons to be concerned about Judge Roberts on this score. He dissented in an Endangered Species Act case in a way that suggested he might hold an array of environmental laws, and other important federal protections, to be unconstitutional.

Truly unbelievable. Judge Roberts's dissent was from a denial for en banc rehearing of a case in which he was worried about whether a particular application of the Endangered Species Act was being upheld on grounds inconsistent with the Supreme Court's commerce clause jurisprudence. He in no way raises concerns about the act itself, and indeed suggests merely that better grounds for upholding its Constitutionality might be found if the whole Circuit were to rehear the case:

The panel's approach in this case leads to the result that regulating the taking of a hapless toad that, for reasons of its own, lives its entire life in California constitutes regulating "Commerce ... among the several States." U.S. Const. art. I, § 8, cl. 3. To be fair, the panel faithfully applied National Association of Home Builders v. Babbitt, 130 F.3d 1041 (D.C. Cir. 1997). En banc review is appropriate because the approach of the panel in this case and NAHB now conflicts with the opinion of a sister circuit - a fact confirmed by that circuit's quotation from the NAHB dissent. See GDF Realty, 326 F.3d at 636 (quoting NAHB, 130 F.3d at 1067 (Sentelle, J., dissenting)). Such review would also afford the opportunity to consider alternative grounds for sustaining application of the Act that may be more consistent with Supreme Court precedent. See Rancho Viejo, LLC v. Norton, 323 F.3d at 1067-68 n.2.

That the Times would so shamelessly distort such a brief dissent from a refusal to rehear en banc tells us all we need to know (not that we didn't already know it) about the sincerity of their "withholding judgment" at this early stage.

Something else to watch out for: the Times, following Sen. Schumer's lead, is calling for thorough questioning of the candidate; no doubt when he gives "evasive" answers both Schumer and the Times will object that the country deserves to have him promise to uphold Roe, and perhaps to confer with Justice O'Connor by phone before writing any future opinion, before he can be supported. But did they oppose Ruth Bader Ginsburg when she ruled out question after question at her hearings? Let us hope that cool heads and clear consciences will prevail over the sort of sleazy politics that is presaged by this editorial--shifting the goalposts on proper inquiry and absurdly claiming that a brief dissent in a denial of a petition for rehearing raises questions about child labor.