When Billmon is on the same page as you, you're doing something right
The real question, then, is purely pragmatic: Do the political benefits of going to the mat over Roberts outweigh the costs? My judgement (and I realize I could be wrong about this) is that they do not -- both because he looks just about impossible to stop, and because even bigger Supreme Court battles almost certainly lie ahead: after Rehnquist and then when the first of the "liberal" justices retires. And that last one really does promise to be the judicial battle of Armageddon.
Under the circumstances, it might be better to save our meager ammunition for those later struggles -- which, with luck, may be fought out after the 2006 elections, giving the Dems a chance to improve their bargaining position by picking up a few seats.
As I said, I could be wrong, and I'm certainly open to persuasion. But withholding fire on Robers out of some high-minded sense of "fairness," or a desire to consider all the facts -- well, I think it should be obvious that we don't live in that kind of country any more. And if progressives don't start adapting their principles to fit that reality, we could find ourselves living in an even more mindlessly reactionary one before long.
Scrutinize the record and move on. There are bigger fish to fry. He has serious questions to answer, but he'll manage, I expect.