Bush finally makes a sensible decision
by nominating John Roberts to replace the late Chief Justice Rehnquist. Whether you like Roberts for the Court at all, the nomination saves a lot of wrangling that the country simply has no time for now.
As for Roberts, I have to say I do not object to his appointment. First, as a former litigator, I know that it is next to impossible to tell what an attorney believes personally by looking at the positions he or she has taken in briefs and memoranda. You make the strongest possible argument for your client, even if you think your client is despicable. It's particularly hard when an attorney works for the government; the chief executive (whether mayor, governor or president) usually has inflexible, publicly-stated positions that an individual attorney can influence only in the most miniscule ways. It makes more sense to look at a sitting judge's opinions, but Roberts hasn't had time to make much of a track record. As the Boston Globe notes:
The record shows him arguing both for and against affirmative action, for and against environment regulations. As a lawyer for Bush I, he wrote that Roe v. Wade should be overruled. As a nominee for the appeals court he called it settled law.
Two other points underlie my lack of objection to Roberts. First, it is simply silly to expect that George W. Bush will choose the same person to appoint to the Court that I would. The question has to be not, "Would I choose this person?" (which seems to be the criterion a lot of groups use), but "Does this person -- although more liberal/conservative" than I am -- represent a reasonable portion of the American mainstream?" By that criterion, Roberts is acceptable. When one of my former law professors, Robert Bork was nominated to the Court, he failed that test. I helped draft the memorandum the Women's Bar Association of the State of NY (WBASNY) sent to the Senate Judiciary Committee opposing Bork's confirmation. In his zeal to secure the nomination, Bork had placed himself way out on the right-wing fringe of American thought, and he was hoist on his own petard. When Anthony Kennedy was nominated in his place, WBASNY asked our committee to reconvene and determine whether it was advisable to take action on this nomination. Kennedy, unlike Bork does represent rational conservative thought, and WBASNY -- whose members represent the entire spectrum of positions likely to reach the Court -- took no formal action. In sum, I look for an intelligent, competent lawyer (although the Constitution does not require that the Justices be lawyers), who is neither an ideologue (like Scalia and Thomas) or a nut, like Bork. One could argue that Roberts is too much not an ideologue (see the Boston Globe article), but it also seems to me that the insistence of so many groups on one-issue "litmus tests" is the cause of that.
The second point ties directly into the first: when a Justice is a competent, intelligent lawyer, and not an ideologue, it is not possible to be certain how he or she will vote. A case in point: Sandra Day O'Connor and Anthony Kennedy were nominated by Reagan, and David Souter by George H. Bush, with an eye to reversing Roe v. Wade. Yet in Planned Parenthood v. Casey in 1992, those three Justices came down firmly in support of a woman's right to choose, among other things striking down "the spousal notification requirement, stating that it gave too much power to husbands over their wives and would worsen situations of spousal abuse." Appropriately, these Justices said,
Men and women of good conscience can disagree, and we suppose some always shall disagree, about the profound moral and spiritual implications of terminating a pregnancy, even in its earliest stage. Some of us as individuals find abortion offensive to our most basic principles of morality, but that cannot control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code. (Emphasis added.)
That sentence must have come as a nasty shock to the abortion opponents who thought they had packed the Court.
Similarly, President Eisenhower appointed conservative California governor Earl Warren to be Chief Justice, only to have Warren preside over the most liberal Supreme Court in recent history. As hard as it is for ideologues at either end of the political spectrum to believe, it is possible for judges and lawyers to put their obligation to society above their personal positions. That I believe is the most important quality in Justices, not that they agree with me on any issue, but that I can trust them not to make the Court their own personal sandbox. It happens more often than non-lawyers know, because most non-lawyers only pay attention to bellwether issues, which make up, in fact, a miniscule portion of the work of the Court. This is the quality that makes a good judge or Justice, not whether he or she agrees with me.