High Court Peace Offering

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By John Yoo
Thursday, July 21, 2005

Democrats should recognize an olive branch when they see it.

By choosing John G. Roberts to replace Sandra Day O'Connor on the Supreme Court, President Bush came as close as possible to finding a non-ideological, consensus nominee who can also lay claim to being a Republican.

Potential nominees such as Attorney General Alberto Gonzales, or federal judges Edith Brown Clement, Edith Jones, Michael Luttig, Michael McConnell or J. Harvie Wilkinson, rightly or wrongly would have prompted intense opposition in the Senate for their written views on abortion, affirmative action, religion, race or the regulatory powers of the federal government.

But Roberts has no far-reaching ideology, no creative articles, no revolutionary plans for constitutional law. He looks like an emblem of the Washington establishment: currently a judge on the U.S. Court of Appeals for the D.C. Circuit, commonly referred to as "the second-highest court in the land"; deputy solicitor general under President George H.W. Bush; associate White House counsel under President Ronald Reagan; clerk on the Supreme Court to then-Justice William Rehnquist; managing editor of the Harvard Law Review; summa cum laude Harvard graduate. If he had gone to St. Albans for grade school, he would have been perfect.

He is most likely to follow the center of the court in its current direction, and he may try to engage in course corrections, but as a standing member of the Washington establishment he won't try to turn the ship around or steer it to a completely different port.

Senate Democrats do not get to choose the nominee; the Constitution vests that power, as Alexander Hamilton explained in the Federalist Papers, in the president. But many Republican partisans did not get their favorites, either. Roberts is no Robert Bork (and I for one wish there were more judges with Bork's intellect and abilities on the Supreme Court and in the lower federal courts).

In fact, the Roberts nomination represents the best opportunity since the outrageous Bork hearings to repair the polarized confirmation process and to bring consensus to our fractured constitutional law.

Of course, the usual advocacy groups want to disqualify Roberts because he signed a brief in 1991 noting that the first Bush administration continued to believe that Roe v. Wade was incorrectly decided. But disagreement with Roe represented the views of Ronald Reagan and George H.W. Bush, who headed administrations that were put in office by large electoral margins. If senators refused to confirm everyone who ever worked in the Justice Department under presidents who exercised their right to interpret the Constitution differently from the courts, many federal judges, both Republican and Democratic appointees, would be disqualified from office. So would many members of the bar who would make excellent judges.

It should be clear by now that Senate Democrats' efforts to use the filibuster to block Bush's nominees have failed. The nominations deal made by 14 senators has allowed most of Bush's blocked nominees to get a floor vote, and has not succeeded in persuading Republicans to nominate judges more acceptable to Democrats. Republicans will almost certainly use the option of changing the Senate rules to prohibit filibusters for judicial nominees if Democrats choose to block Roberts. Rather than mounting an ultimately futile attack on Roberts as a right-wing ideologue, Senate Democrats have a chance to return to the standard of confirming nominees with the highest professional qualifications and sound judgment. Or they can try to block Roberts, and give Senate Republicans the ground to block the next Ruth Bader Ginsburg or Stephen G. Breyer.

Confirming Roberts could also be the first step in bringing consensus to the Supreme Court itself. In his few opinions, Roberts has displayed a noteworthy deference to the elected branches of government on matters of policy. In what is becoming known as the "french fry" case, Roberts (a father of two young children) did not allow his clear personal feelings to get in the way of upholding a valid regulation prohibiting eating on Washington's Metro, even though it resulted in the arrest of a 12-year-old girl for eating a single french fry. Last week, Roberts was a member of a unanimous panel of the D.C. Circuit that accepted Bush's decision to use special military courts to try Osama bin Laden's driver and bodyguard, and that refused to second-guess Bush's decision that the Geneva Conventions do not apply to the war against al Qaeda. No doubt critics of these decisions would have preferred different rulings, but Roberts understood that those choices are up to the president and Congress, not the unelected courts.

For the past few years, Democratic Party thinkers and liberal academics have demanded a greater degree of restraint from the Supreme Court because they disagree with the court's decisions on race and states' rights. Some, such as Stanford Law School dean Larry Kramer and Georgetown University law professor Mark Tushnet, have even proposed eliminating the judicial power to invalidate acts of Congress, a power the courts have enjoyed since Chief Justice John Marshall's decision in Marbury v. Madison in 1803.

For their part, legal conservatives have long wanted to take the federal courts out of their aggressive role in setting national social policy, and they should be more comfortable with judicial restraint now that they control both the presidency and Congress. Perhaps Republicans and Democrats can agree not only on Roberts the person, but also on what he represents -- a judge who will bring a measure of judicial restraint to the Supreme Court that allows our elected representatives, and not the courts, to make policy on our most important social issues.

The writer is a law professor at the University of California at Berkeley and a visiting scholar at the American Enterprise Institute. He served in the Justice Department from 2001 to 2003.


© 2005 The Washington Post Company

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