If you're concerned about the rightward drift of the U.S. Supreme Court, you may be hoping -- as I am -- for a smoking-gun revelation that would disqualify John G. Roberts Jr.
Sometimes we even imagine we've found the damning evidence. For instance, despite his careful attempts to shield his private views -- either by declining to put them in writing or by making it appear that the positions he took were merely those of his clients -- we are learning some things about the nominee that confirm our suspicions. He has been, virtually since his arrival in government, not just a counsel but an advocate of positions that, to civil rights partisans, for instance, seem well out of the settled mainstream.
He wanted, his memos confirm, to limit the reach of the Voting Rights Act, to do away with such race-conscious approaches as school busing and affirmative action, to curtail the application of Title IX to equalize opportunity for women, and to strip the Supreme Court of its ability to hear certain classes of civil rights cases.
And we wonder why none of it seems to matter. Don't the American people understand the danger of letting the Supreme Court become, in essence, a partisan of one side in a closely divided nation?
In a word, no. I've just looked at something I wrote on the subject more than a dozen years ago, and I'm not sure I'd change a word of it now:
"Certainly it is within the prerogatives of presidents to name to the federal judiciary men and women whose views are more or less consistent with their own. But it is also within the bounds of good government to keep the courts -- and the Supreme Court in particular -- generally reflective of the populace. It's just another way of legitimizing the judiciary.
"Presidents used to understand that (although their idea of what was 'reflective' of America was more likely to embrace ideology than race or gender). Not only did the fairly conservative Eisenhower appoint Earl Warren; the conservative Nixon appointed [Harry] Blackmun, who authored the Roe v. Wade opinion, and the liberal Kennedy appointed [Byron] White, who dissented from it. It was once a matter of good sense -- FDR's court-stacking attempt notwithstanding -- to keep the court within some sort of rough political balance.
"Only in fairly recent times has the Supreme Court come to be viewed as part of an ideological spoils system."
You get an idea of the degree to which that description still applies when you consider that the most troubling revelation to Roberts's supporters -- the only one they have felt it necessary to explain away -- is that he once gave pro bono legal advice to a gay rights group.
What is so magical about having the court generally in the mainstream? Two things, I think. The first is balance. I may hold strong views on certain subjects, but I wouldn't want to run a newspaper where everybody subscribed to those views. Certainly I'd like my views generally to prevail, but I'd also want readers who held different views to have some confidence that my publication was interested in truth and fairness. If that's true of a newspaper, where countless alternatives are available, how much truer it is of the Supreme Court.
The second thing about balance came from a friend -- black, conservative and Republican -- who was laying out the reasons he opposes the Roberts nomination.
It isn't his conservatism, my friend said, but the too-smooth path by which Roberts has arrived at this juncture. Son of a wealthy steel executive, Roberts attended private schools, Harvard and Harvard Law School, then held a federal appeals court clerkship, followed a year later by a clerkship with Supreme Court Justice (now Chief Justice) William Rehnquist.
He then was named special assistant to the U.S. attorney general, and associate counsel to the president (at age 27) before joining one of Washington's top law firms. Then Roberts went to the office of the solicitor general of the United States and, for the past two years, a seat on the U.S. Court of Appeals for the D.C. Circuit.
The point: Nothing in that glide path suggests exposure to anything that might temper his conservative philosophy with real-life exposure to the problems and concerns of ordinary men and women. Roberts is undeniably bright, said my friend, but his life has been one of quite extraordinary privilege.
And then it occurred to me: Roberts's life has been amazingly like that of the man who wants to put him on the court -- but with better grades.