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John Roberts moves toward the Supreme Court – carefully

By W. James Antle III
web posted July 25, 2005

John G. Roberts, Jr.How conservative is John G. Roberts, Jr.? It’s a question being explored by journalists and interest-group researchers as they dig through old law review articles and legal briefs. Their uncertainty owes to the fact that throughout his distinguished career, Roberts has evinced a quintessentially conservative virtue: prudence.

By nominating Roberts, President Bush has put his Democratic critics in a bind. In the weeks after Sandra Day O’Connor announced her retirement, Senate Judiciary Committee Democrats conceded that Bush could choose a conservative to replace her. “We know the president’s nominee is going to be a conservative,” allowed Sen. Charles Schumer (D-N.Y.). “No question. President Bush himself is a conservative.”

At issue, liberal court watchers claimed, was whether the president would pick a “mainstream” conservative or a right-wing “extremist”.

Roberts is no extremist. If confirmed, he probably will not be the most conservative member of the Supreme Court. He will almost certainly be less ideologically confrontational than Antonin Scalia or Clarence Thomas.

But if he’s no Scalia, he’s no David Souter either. Democrats were ready to tolerate an Alberto Gonzales or to filibuster a Samuel Alito or Michael Luttig. Roberts doesn’t fit neatly into either category.

What to do? Liberal organizations like NARAL Pro-Choice America and People for the American Way have decided to vigorously resist the nomination. That’s their raison d'être, and if nothing else they must take advantage of the fundraising opportunities so they may live to Bork another day.

Elected Democrats seem less certain. At this writing, no Democratic senator has pledged to vote against Roberts. Members of the bipartisan “Gang of 14” have told reporters that a filibuster is unlikely.

Part of their reticence is attributable to Roberts’ formidable qualifications: clerk to William Rehnquist, veteran of the Reagan and Bush administrations, lucrative private practice, 39 cases argued before the Supreme Court, a reputation for a keen legal mind and solid personal character. As an achiever, Roberts stands out in a city of climbers.

He has also been exquisitely cautious. Though conservative, he has scrupulously avoided courting undue controversy. Unlike Scalia or Robert Bork, he is not known for his scathing dissents or contentious public pronouncements. He is deeply plugged into the Washington legal network, but contrary to published reports he has never plunked down the $50 Federalist Society dues – thus depriving would-be Democratic inquisitors the opportunity to ask, “Are you now or have you ever been a member of the right-wing Federalist Society?”

Such caution, coupled with a short judicial record, has even concerned some conservatives. The pugnacious Ann Coulter complained that “Roberts has gone through 50 years on this planet without ever saying anything controversial. That’s just not natural.” Dan Flynn asked, “Is a crapshoot the best conservatives can do?”

Republican blogger Kevin Patrick went further: “Why do we give the money we give, lick the stamps we lick, write the letters we write, register the voters we register, relentlessly blog the critical messages we blog, and vote overwhelmingly the way we vote when there are just as many arguments to be made that we have just nominated the next David Souter as there are that we have nominated the next Antonin Scalia?”

Other conservatives see in Roberts’ circumspection political and legal maturity. New York Times columnist David Brooks called him “the face of today’s governing conservatism.” His old Weekly Standard boss William Kristol argued that to govern, the right’s “radicals need assistance, support, and reinforcement from establishment conservatives.”

Much of the conservative consternation stems from Roberts’ ambiguity about Roe v. Wade. Like former Sen. Howard Metzenbaum (D-OH) on the other side, pro-lifers are tired of reading the tea leaves.

Roberts (now famously) co-authored a brief in the first Bush administration that said the decision was “wrongly decided and should be overruled.” But he was speaking as a pro-life administration’s representative, was the sixth lawyer listed on the brief and wasn’t the one who argued the case. The Rust v. Sullivan brief doesn’t necessarily commit Roberts to an anti-Roe position.

In fact, during his 2003 D.C. Court of Appeals confirmation hearings, Roberts referred to Roe as “settled law.” This statement has convinced conservative critics that Roberts will be unreliable on abortion – and possibly many other issues.

But just because Roberts believes lower courts must be bound by Supreme Court precedent on the issue doesn’t mean he would be a Roe vote as justice. John Ashcroft and Bill Pryor have also called Roe settled law in that context, but few seriously believe they wouldn’t overturn it if they were serving on the High Court and the opportunity presented itself.

Many leading social conservatives – perhaps convinced by what the New York Times described as a year-long White House lobbying effort – support Roberts. So do most constitutional conservatives, based on his record, reputation and extensive D.C. conservative contacts.

Roberts will likely have the chance to resolve these questions. Whatever else may be uncertain, his confirmation doesn’t seem to be.

Caution pays.

W. James Antle III is an assistant editor of The American Conservative and a senior editor for Enter Stage Right. The views expressed above represent his alone.


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