A Right Turn With a Smile
Judge John G. Roberts could turn out to be Antonin Scalia with a Washington Establishment smile. He is almost certainly a William Rehnquist for the 21st century. And he is David Souter turned on his head -- a stealth candidate whose winning personality disguises intense conservatism, not moderation.
Roberts was, in short, the shrewdest choice President Bush could have made to fill retiring Justice Sandra Day O'Connor's Supreme Court seat. Roberts could move the court well to the right yet grin his way through the confirmation process. His advertising slogan might be: Staunchly on the Right. But With No Hard Edges.
All of which means that the next two weeks will be crucial in determining how the Roberts confirmation battle goes. The Bush administration will be desperate to frame the fight in terms of Roberts's ample qualifications, his bipartisan group of friends, his fine education and his lovely family.
Roberts's opponents need to lift the argument to the level of principle. It doesn't matter how nice or smart Roberts may be. What matters is that on a court where so many cases have been decided by 5-to-4 votes, Roberts's convictions and philosophy matter far more than his biography.
If you doubt this, consider that no one disputes Justice Antonin Scalia's intelligence or sense of humor. Many of us would welcome the chance to have Scalia as a professor. But outside the ranks of the right wing, few Americans want their country defined consistently by Scalia's choices. In shifting the balance on the court, Roberts could give Scalia the power to impose his worldview.
The issues at stake are not abstract. They have to do with the government's power to protect the environment, to safeguard civil rights, including the rights of the disabled, and to provide protections for employees and consumers. It's admirable that this son of a steel executive worked some summers in a steel mill. More important is how he would rule on cases involving steelworkers and other working men and women.
Anyone who doubts that Roberts will be a consistent conservative vote on the court should examine the avalanche of endorsements that immediately fell his way from right-of-center groups. Brian Fahling of the American Family Association's Center for Law and Policy called Roberts an excellent choice. The Rev. Louis P. Sheldon, chairman of the Traditional Values Coalition, said the nomination of Roberts provided "an unparalleled opportunity to restore the proper role of the Supreme Court." Jay Sekulow of the American Center for Law and Justice called the nomination "great news."
These gentlemen are not "squishes," to use the popular right-wing word for conservative sellouts. They care passionately about moving the court to the right. If they think Roberts will do that, the rest of us should pay attention.
But while Roberts could expand Scalia's power, the nominee's background is more similar to Rehnquist's. Like the chief justice, Roberts has been a loyal Republican Party operative. He was reportedly involved in the Bush legal effort in 2000 to block further recounts in Florida. We always knew that the Supreme Court conservatives who helped put this president in office were paving the way for an even more conservative court. Roberts's nomination is the fruit of that effort. Surely he should be questioned closely about one of the most outrageous decisions in the court's history and his role in the Florida fiasco.
Yes, the opposition party has an obligation to be tough on this nomination. But there is every sign that it may exercise this duty in a civil way. In their initial remarks, Roberts's likely critics gave him his due as a lawyer and a person. "There is no question that Judge Roberts has outstanding legal credentials and an appropriate legal temperament and demeanor," said Sen. Charles Schumer of New York, a leading Democratic voice on the Judiciary Committee. Ralph Neas, president of the liberal People for the American Way, said in an interview that "no one should question his likability."
But a good personality and a public record that, in Neas's phrase, is "very sparse" do not mean that Roberts belongs on a closely divided court. The Bush administration will be trying to create a nice-guy stampede to Roberts among moderate Democrats and Republicans. The stampede should be resisted until everyone knows more about where Roberts stands. Conservatives were surprised at how liberal Justice Souter turned out to be. There will be no excuse for discovering too late that Roberts is every bit as conservative as his supporters think he is.