A judicious choice
By all accounts, John G. Roberts Jr. is a likable guy. His list of friends and supporters, brandished by President Bush on Tuesday as he announced Roberts as his nominee for the Supreme Court, stands at 156 and counting, spanning the ideological spectrum, with a litany of adjectives that would make any mother (or president for that matter) proud.
Whether Roberts is the right choice for the court is another question. Although some liberal interest groups rushed to portray Roberts as a dangerous extremist, his nomination seems to signal a desire on the part of the White House to avoid a nasty confirmation battle. Given that Bush passed over some of the more extreme conservatives who’d been mentioned as candidates, we may yet witness a civil debate about the Supreme Court, and the president will deserve some credit if we do. In any event, Bush was right Tuesday to insist that the Senate act on his nomination before the court reconvenes in October.
Roberts is a shrewd choice for many reasons, but perhaps his most important characteristic is a near-ideal mixture of familiarity and inscrutability. He has a sterling record in Washington as a litigator, appearing before the Supreme Court 39 times over more than a decade, and few he has encountered have anything bad to say about him; even legal adversaries such as Walter Dellinger, a solicitor general in the Clinton administration, praise him.
At the same time, his relatively sparse judicial record — he has only been on the U.S. Court of Appeals for the District of Columbia Circuit since June 2003 — makes it difficult for opponents to build a case against him.
It is entirely appropriate for the Senate to probe a nominee’s judicial philosophy, and two issues will require special examination. Last week, Roberts voted to uphold the administration’s plan to try detainees at Guantanamo in ad hoc military tribunals. Senators will have to ascertain just how much further Roberts would defer to the executive in pursuing the war on terrorism. Much also will be made of a footnote in a legal brief he submitted as deputy solicitor general in 1991, saying that Roe vs. Wade “was wrongly decided and should be overruled.” It is an undeniably disturbing assertion. But he can argue that he was merely arguing the position of his then-boss, President George H.W. Bush. (In fact, Roberts did make essentially this point in his confirmation hearings 12 years later.)
Roberts has long been a member of the Washington establishment, and a fixture in the Federalist Society. He clerked for Justice William H. Rehnquist, and worked in the Justice Department and in the White House for Ronald Reagan and George H.W. Bush. In private practice, he was one of a select group of Supreme Court lawyers for corporate America.
It has always been clear Bush would appoint a conservative. But Roberts may be more of a chamber of commerce-type than a social conservative with a burning desire to become a judicial activist intent on saving America from itself. He may not be in the mold of Justices Antonin Scalia or Clarence Thomas — though we may come to eat those words; check back in a few years. If he has a strong ideology, it has yet to make itself known.
The conservative fear, which is the same as the liberal hope, is that he is the second coming of Justice David H. Souter. Souter has been a bitter disappointment to many conservatives, voting to uphold Roe vs. Wade and reliably siding with the court’s liberals on other issues. And the liberal fear — akin to the conservative hope — is that Roberts is a stealth choice who will show his true conservative colors as soon as he takes his seat on the court.
The best we can expect is a confirmation process that will flesh out his views and provide some insight into his philosophy. Even a day ago, we would have said that such a hope was naive. But Roberts has a temperament that may encourage a smooth confirmation process. There is every reason to expect that he will receive an up-or-down vote, as he deserves, by the time the court reconvenes in the fall.
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