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The Golden-Boy Nominee

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It’s the counterintuitive, man-bites-dog bits of his record that stand out—the things that are making the right-wing zealots qualmish.

Just after he left government work for private practice twelve years ago, he wrote a law-review article called “Do We Have a Conservative Supreme Court?” “In the interest of full disclosure,” he pointed out, as a lawyer in the solicitor general’s office, he had helped litigate cases he was writing about. Then he went further—gratuitously, wittily, interestingly—to say that “[i]n the interest of even fuller disclosure, [I] would also like to point out that [my] views as a commentator on those cases do not necessarily reflect [my] views as an advocate for [my] former client, the United States.”

The somewhat Jesuitical question now is in which instances he disagreed—that is, when were his personal views to the “left” (or, God forbid, the right) of the arguments he dutifully made?

As a private litigator, he won a big case that stopped helter-skelter real-estate development around Lake Tahoe, and as an appeals-court judge since 2003, according to the Sierra Club’s Washington legal director, “There is certainly no . . . anti-environmental bias we can see.” And what doctrinaire right-winger would take on the pro bono clients (a death-row inmate; welfare recipients) that he did? Most remarkable of all, he coached the lawyers who sued Colorado over the provision in its constitution that forbade anti-discrimination laws protecting homosexuals—a landmark 1996 case that the Supreme Court decided in favor of gay rights.

When he met this month with Democratic senator Ron Wyden, he criticized the Republicans’ pro-life grandstanding intervention in the Terry Schiavo case, and in a different context cited Justice Louis Brandeis’s famous quote (from a dissent in a case involving wiretaps by Eliot Ness) about “the right to be left alone.”

All of which inclines me to believe—to devoutly hope—that he is a real old-fashioned conservative rather than any sort of culture warrior out to socially reengineer America. And these days, ironically, it’s the triumph of true judicial conservatism for which political liberals must . . . well, pray.

During his Court of Appeals confirmation two years ago, Roberts told the senators, “Roe v. Wade is the settled law of the land” and “[t]here’s nothing in my personal views that would prevent me from fully and faithfully applying that precedent.” That seems genuinely, reassuringly conservative.

Yet in 1991, as a lawyer representing the first Bush, Roberts wrote in a brief that “[w]e continue to believe that Roe was wrongly decided and should be overruled. . . . The Court’s conclusions in Roe that there is a fundamental right to an abortion . . . find no support in the . . . Constitution.” 

Contradictory positions? Except for that troubling phrase “and should be overruled,” not necessarily. More like a tragic paradox.

Since the pro-choice position is one of the defining and unquestionable articles of faith for liberals, most of us don’t realize that the Supreme Court’s constitutional logic in Roe v. Wade is considered very iffy by many (maybe most) mainstream legal scholars, including liberal gods like Lawrence Tribe and Cass Sunstein. Yet for better or worse, it is settled law; to overturn it now would be a radical act of judicial hubris, socially disruptive in the extreme.

In other words, now that the era of activist liberal judicial hegemony is over, we liberals have to hope that Roberts and Bush’s other appointees really are devoted to judicial restraint—the way liberals were not, back in the day. It’s chastening to see the right, now ascendant, behaving in ways our side used to behave. So many shoes are on the other foot. I grew up understanding the filibuster as a last-ditch means for segregationists to veto civil-rights legislation; now liberals cling to it as a last-ditch means to veto judges antagonistic to civil rights. “States’ rights” was cynical code for southern segregationism, yet now we beleaguered liberals sincerely insist on any state’s right to legalize physician-assisted suicide, gay marriage, medical marijuana—and, if Roe v. Wade were to be overturned, abortion.

Like everyone, I read Emerson and Thoreau when I was 15, the perfect age to decide one can determine for oneself which laws to obey, and that yes, consistency is so the hobgoblin of little minds. As far as jurisprudence goes, however, it turns out that consistency and adherence to precedent are the things that protect us from being tyrannized by our opponents when they’re in power. Maybe Roberts is still more of a Daniel Webster pragmatist than a Thoreau-Emerson Utopian, and considers himself—as he wrote in his prize-winning Harvard paper on Webster—“a disinterested . . . man of wisdom who continually worked with others of his sort to resolve any controversy which threatened national harmony.” Unlike the hep lefty kids of his generation, he didn’t indulge any disharmonious, loosey-goosey improvisations. Our best hope is that he doesn’t start now.


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