Confirm John Roberts

Sunday, September 18, 2005

JOHN G. ROBERTS JR. should be confirmed as chief justice of the United States. He is overwhelmingly well-qualified, possesses an unusually keen legal mind and practices a collegiality of the type an effective chief justice must have. He shows every sign of commitment to restraint and impartiality. Nominees of comparable quality have, after rigorous hearings, been confirmed nearly unanimously. We hope Judge Roberts will similarly be approved by a large bipartisan vote.

This is not to say we expect that as chief justice, Judge Roberts will always rule as we would like. Reading the tea leaves of any justice's future votes is a dicey business. But on a number of important issues, Judge Roberts seems likely to take positions that we will not support. His backing of presidential powers, and willingness to limit civil liberties, appear worrisomely large, while his deference to congressional authority relative to the states may be too small. He appears more suspicious of affirmative action than we think the court should be, and his view of certain civil rights protections has been narrow. Given his comments about precedent and the right to privacy, we do not believe a Chief Justice Roberts will be eager to overturn federal abortion rights. But we recognize that he might end up supporting that unfortunate step, as the late chief justice William H. Rehnquist did unsuccessfully. These are all risks, but they are risks the public incurred in reelecting President Bush.

Judge Roberts represents the best nominee liberals can reasonably expect from a conservative president who promised to appoint judges who shared his philosophy. Before his nomination, we suggested several criteria that Mr. Bush should adopt to garner broad bipartisan support: professional qualifications of the high-

est caliber, a modest conception of the judicial function, a strong belief in the stability of precedent, adherence to judicial philosophy, even where the results are not politically comfortable, and an appreciation that fidelity to the text of the Constitution need not mean cramped interpretations of language that was written for a changing society. Judge Roberts possesses the personal qualities we hoped

for and testified impressively as to his belief in the judicial values. While he almost certainly won't surprise America with generally liberal rulings, he appears almost as unlikely to will-

fully use the law to advance his conservative politics.

For this reason, broad opposition by Democrats to Judge Roberts would send the message that there is no conservative capable of winning their support. While every senator must vote his or her conscience on the nomination, the danger of such a message is considerable. In the short term, Mr. Bush could conclude there is nothing to be gained from considering the concerns of the opposition party in choosing his next nominee. In the longer term, Republicans might feel scant cause to back the next high-quality Democratic nominee, as they largely did with Justices Ruth Bader Ginsburg and Stephen Breyer.

If presidents cannot predictably garner confirmation for nominees with unblemished careers in private practice and government service, they will gravitate instead to nominees of lower quality who might excite their bases. Mr. Bush deserves credit for making a nomination that, on the merits, warrants support from across the political spectrum. Having done their duty by asking Judge Roberts tough questions, Democrats should not respond by withholding that support.

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