Not worth fighting over
THE BATTLE OVER the nomination of Judge John G. Roberts Jr. to the Supreme Court has hardly begun and already it feels anticlimactic. Much to the dismay of various ideologues, Roberts is the kind of bland, affable -- and competent -- figure who fails to inflame target audiences.
Which is exactly why Roberts will probably take his seat on the court the first Monday in October. Confirmation hearings remain, of course, and there is still time for further revelations about his conservative views to arouse passions on either end of the political spectrum. (Choose one: he is excessively/insufficiently doctrinaire.) But the chances of another confirmation brawl are increasingly remote.
Unwittingly, NARAL Pro-Choice America last week provided the best illustration of how difficult the case against Roberts can be. On Monday, it released a patently dishonest advertisement implying that Roberts supports violence against abortion clinics. On Thursday, after the ad had been denounced by abortion-rights and antiabortion activists alike, NARAL announced it would replace it with a more temperate (and, presumably, accurate) commercial.
Meanwhile, conservative partisans have been confounded by Roberts’ role as pro bono counsel to a gay rights organization a decade ago. If Roberts actually supports the cause of gay rights, it is an unsettling deviation, they say, from social-conservative orthodoxy. If he was merely helping out a partner in his firm, it is evidence of a dangerous vulnerability to liberal socialization. After all, if he couldn’t say no then, how can he be expected to resist the charms of David H. Souter?
The good news for liberals is that he won’t be able to. (Who is?) But the better news for conservatives is that he would also fall under the spell of Antonin Scalia, Clarence Thomas, William H. Rehnquist and any other conservative justices who make it onto the high court in the next two years.
On the Supreme Court and in the lower federal courts, collegiality matters -- maybe as much as ideology. As professors Cass Sunstein and David Schkade have shown, the “majority ideology” of a panel of judges tends to influence even those judges who don’t subscribe to it. A Democratic appointee serving with two other Republican appointees, for example, agrees to more conservative decisions than he would if among his own kind. The two Republicans, meanwhile, agree to more liberal decisions than they would if left to themselves.
And Roberts, as it turns out, sees collegiality as a virtue. This may be the most salient fact about him. More information is always better, and his early memos -- and more recent judicial opinions -- are revealing. Yet there is a whiff of futility around the effort by Democrats and liberal interest groups to pressure the White House to release more documents about his tenure as deputy solicitor general in the administration of President George H.W. Bush. No one is so naive as to expect that Roberts will actually say what he thinks about anything of consequence, least of all on Roe vs. Wade.
But it is possible to be both candid and deliberate. On that score, there is some cause for hope in a videotape released last week, described by Times staff writer Maura Reynolds on Wednesday. In a speech about judging he delivered on a college campus in February, Roberts comes off as appealingly modest and -- dare we say it? -- even open-minded.
“The decisional process is very fluid,” he said. “It is not at all unusual in my own experience to have one view of the case when you finish reading the briefs, a different view of the case when you sit down and debate it with your clerks, another view of the case after oral arguments, and you’re back again at a different view” after discussing it with other judges. His roll call of favorite judges was refreshingly ecumenical, including not just Rehnquist (for whom he once clerked) but also Justice William J. Brennan, a hero among liberals.
By now it is clear that Roberts is no crazed ideologue intent on overturning precedents willy-nilly. He appears to be a thoughtful conservative who values and respects the social stability provided by the law’s slow evolution. As such, he may disappoint extremists who’d hoped -- and raised money -- for an all-out confirmation war. But those same qualities would serve him well on the Supreme Court.
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