The President's Choice

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Wednesday, July 20, 2005

IN NOMINATING Judge John G. Roberts Jr. to the Supreme Court, President Bush picked a man of substance and seriousness. Judge Roberts has served only briefly on the U.S. Court of Appeals for the D.C. Circuit, but he was previously among the country's best-regarded appellate lawyers, both in private practice and as deputy solicitor general during the administration of George H.W. Bush. Judge Roberts is a conservative, but he has never been an ideological crusader; he has admirers among liberals. If confirmed as the successor to Justice Sandra Day O'Connor, it is likely that he will shift the Supreme Court toward the right. But his nomination is not a provocation to Democrats -- as some other possible nominees would have been. Mr. Bush deserves credit for selecting someone with the potential to attract broad support.

This is not to say that Judge Roberts's nomination will proceed without controversy. At least one of his opinions since joining the D.C. Circuit raises a concern about his views of the balance of power between the federal government and the states. In that case, Judge Roberts intimated that he might take a very narrow view of the power of Congress to regulate interstate commerce -- the constitutional foundation of much of modern federal law. Judge Roberts poetically questioned whether "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.' " Senators will need to explore whether he envisions a dramatic revision of federal power.

Other issues will surely arise. Judge Roberts's two nominations to the D.C. Circuit -- a failed bid at the tail end of the first Bush presidency, and a second in 2001 -- were both held up because of liberals' anxieties. Abortion rights advocates have objected to his having argued, as a lawyer for the government in a case about federal funding for family planning, "that Roe v. Wade was wrongly decided and should be overruled." Judge Roberts has never said whether that brief reflected his own opinion. But the question has already come up anew -- as have more general concerns that he is just too conservative.

The reality, however, is that nobody really knows what Judge Roberts believes, because he has been unusually careful about not discussing his views. His judicial work has been, generally speaking, careful and has given little away about the attitudes of the man who wrote it. So sphinx-like has he been that some conservatives have suggested he might have a "Souter problem" -- that is, not be a real conservative at all. This seems unlikely. But Judge Roberts's law practice was not ideologically driven, and he has not used his brief time on the bench -- as some judges and justices do -- as a platform to promote either his politics or a grandiose theory of judging. His confirmation hearings offer the Senate the opportunity to probe whether his evident reticence and caution would translate into a restrained jurisprudence that respects the stability of precedent.

Such a substantial picture of the nominee will require a serious and dignified confirmation process. The prospects for one are mixed. Senate Minority Leader Harry M. Reid (D-Nev.) noted Judge Roberts's "suitable legal credentials" and appropriately reserved judgment. By contrast, no sooner had the nomination been reported than People for the American Way declared itself "extremely disappointed" and suggested that his confirmation could be a "constitutional catastrophe." Conservative groups, meanwhile, are demanding his immediate confirmation. In the days that come, the cacophony of voices promoting or opposing him could easily drown out any serious discussion of a man who deserves careful consideration. The Senate needs to make sure that a fair, open and substantive confirmation process takes place even amid the noise.


© 2005 The Washington Post Company

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