Those of us who would passionately oppose yet another “out-of-the-mainstream” right-wing nominee to the Supreme Court should sheathe our swords.
What does it mean to say that a jurist is “out-of-the-mainstream”? On the liberal side, it might mean a judge who would hold that there is a constitutional right to welfare, that affirmative action is constitutionally-mandated, that the First Amendment forbids government ever to invoke God, and that our freedom from “unreasonable searches and seizures” may never be compromised, even in time of war. I know many judges who hold one or more of these views, but I know none who accepts them all. Such a judge, however, would surely be “out-of-the-mainstream” of American constitutional thought. He would be at the far left fringe of the bell curve.
On the conservative side, a judge might be “out-of-the-mainstream” if he would hold that states may constitutionally endorse religion, that affirmative action is unconstitutional, that Roe v. Wade should be overruled, that the First Amendment prohibits any regulation of commercial advertising or corporate political spending, and that the president has the authority to detain an American citizen indefinitely without any access to a lawyer or judicial review. Such a judge (think Clarence Thomas) would also be “out-of-the-mainstream” of respectable constitutional thought. He would be at the far right fringe of the bell curve.
That brings me to John Roberts. During the 2004 election, George W. Bush promised to appoint Supreme Court justices like those he most admires -- Antonin Scalia and Clarence Thomas. In nominating John Roberts, Bush has broken that promise, to the great good fortune of the American people. The last thing the nation needs is for one-third of the Supreme Court to be off the deep right end of the law.
Bush’s fear of a disastrous Senate battle over his Supreme Court nominee, a battle that would have wreaked havoc with his prospects for a “successful” second-term, led him to eschew the more ideologically-rigid nominees he presumably preferred. This is an important victory for liberals and Democrats. It should not be taken for granted. Bush knew Senate Democrats would rightly filibuster a Thomas-like nominee, he knew such a filibuster would once again trigger an ugly confrontation over the “nuclear option,” and so, he blinked.
This is not to say that John Roberts would be my choice for the Court. To the contrary, because we do not share a constitutional philosophy, he would not be anywhere in my top 100. I would prefer someone more like Ruth Bader Ginsburg or William Brennan, someone deeply committed to an interpretation of the Constitution that fulfills its promise of fairness, equality, liberty, and individual dignity. And let there be no doubt about it, that is not John Roberts. Roberts has a long record as a dyed-in-the-wool conservative. When he joins the Court, his votes will be noticeably more conservative than Justice O’Connor’s when she left the Court. He will move the Court to the “right.”
But it is also the case that Roberts has never embraced the vacuous ideology of “originalism” and, frankly, he seems too smart to do so. Roberts is too good a lawyer, too good a craftsman, to embrace such a disingenuous approach to constitutional interpretation. Everything about him suggests a principled, pragmatic justice who will act cautiously and with a healthy respect for precedent.
This does not mean, of course, that he will not vote to eviscerate Roe v. Wade or reject the rights of homosexuals or narrow the scope of affirmative action or expand the role of religion in public life or endorse the so-called "new federalism." He may vote to do some or even most of those things. But if he does, it will be in an open-minded, rigorous, intellectually honest manner, rather than as an ideologue whose constitutional principles derive more from fiction and faith than from legal reason.
Moreover, like many conservative appointees, there is every reason to believe that Justice Roberts will gradually drift to the “left,” following the footsteps of Justices Blackmun, Powell, Stevens, O’Connor, Kennedy, and Souter. Appointed as conservatives by Republican presidents, each of these justices evolved over time. Because they were not tethered to an inflexible ideology, they remained open-minded and continued to learn and to grow during their time on the Court. And what they learned was important.
Justices are continually exposed to the injustices that exist in American society and to the effects of those injustices on real people. As they come more fully to understand these realities, and as they come to an ever-deeper appreciation of the unique role of the Supreme Court in our constitutional system, they become better, more compassionate justices. This, too, will happen to John Roberts.
Of course, the Senate must fulfill its constitutional responsibility to interrogate the nominee to ensure that he is, in fact, the person I have described. But if he is, he should be warmly embraced as the best the nation could expect from this administration -- a brilliant, decent individual with superb legal skills and without a rigid ideological agenda. Unless and until we learn otherwise, organizations like MoveOn and the Alliance for Justice should stay their hand and accept the “win” that is John Roberts.
This was published as an op-ed in the Chicago Tribune (July 27, 2005).