As I and most everyone else expected, Pres. Bush nominated a solid conservative to replace Sandra Day O’Conner on the Supreme Court. And, in keeping with his persona of doing things his way, his choice was not a woman, as some had expected.
John Roberts is a rock solid conservative. But, unlike some of the other possibilities on Bush’s short list, he is, thankfully, not an activist. If his nomination is approved by the Senate, the big question that will eventually be answered is will he tip the balance on the High Court significantly toward the right?
Roberts grew up in Long Beach, a small town in Northwest Indiana along the shore of Lake Michigan. He graduated from a private school in LaPorte, Ind. So he grew up with solid Midwestern values.
He was a former clerk to William Rehnquist before he became Chief Justice. Roberts was also a Justice Department official under Presidents Ronald Reagan and George H.W. Bush, and was appointed by the current president to the U.S. Court of Appeals for the District of Columbia Circuit two years ago. He was approved by the Senate for that position by voice vote.
But O’Conner was a moderate conservative. She was often the swing vote on major divisive issues such as abortion rights and affirmative action. She most recently was the swing vote on a decision that allowed a Texas courthouse to keep its monument of the Ten Commandments while denying a Kentucky court the right to hang a plaque of the same inside its lobby.
Roberts may not be so centrist. When he was solicitor general for the elder Bush, he spoke out against abortion rights, saying that Roe v. Wade should be overturned.
Advocates for Roberts say that he was only doing his job when he made that statement. It was made as a lawyer on behalf of his client, Bush.
Even Roberts later said, “Roe v. Wade is the settled law of the land.”
But as a conservative, one has to believe that Robert’s views on abortion and the former Supreme Court case that made it legal is similar to his former boss’s.
Still, one has to give Roberts credit. The Harvard graduate has impeccable credentials, is brilliant, and has remained largely free from controversy, although he has been a federal judge for only two years.
During those two years, he has not written any opinions that stand out as being reactionary. One might hope that he will adjudicate from a strictly legal and constitutional standpoint, not an ideological one.
Bush claims that’s one of the reasons he settled on Roberts. “John Roberts has devoted his entire professional life to the cause of justice and is widely admired for his intellect, his sound judgment and his personal decency,” Bush said.
Bush previously said that he wanted someone who would interpret the Constitution strictly and not try to legislate from the bench. During Robert’s short tenure as a federal judge, he seems so far to have opined without much legislative rhetoric.
But both his foes and his supporters are gearing up for a battle in the Senate. They have been raising funds is anticipation of a fight over confirmation and I don’t look for either side to disappoint.
And it is imperative that all Robert’s written opinions while on the bench be perused for any sign of advocacy. A judge’s job, especially one on the High Court, is to interpret the law and the Constitution from a neutral standpoint.
Justice Anthony Kennedy once wrote, “The First Amendment is often inconvenient. But that is beside the point.”
That is a good philosophy for all justices to keep in mind. The law of the land is supreme, regardless of how inconvenient it makes things or how distasteful it might be to some.
If Roberts is confirmed, as I’m sure he will be, I hope he keeps that in mind. The Constitution gave Congress powers to legislate, not the courts.