I’ve never come close to voting for a Republican for president. There are a lot of things about the Republicans to fear and loathe generically—their exploitation of whites’ racial fears, the party’s proud commitments to selfishness and irrationality—but time after time, what makes me pull the lever even for the Michael Dukakises and Al Gores is the Supreme Court. I play the odds: Not every Democrat’s judicial nominee will be a hero, nor every Republican’s appointee a nightmare (Reagan appointed two moderates as well as two right-wingers; Poppy Bush appointed David Souter as well as Clarence Thomas), but I figure the chances of slowing the rightward drift and of overall sanity prevailing are greater if a Democrat is picking judges.
And so John Roberts is not the justice for whom I voted last November. But I’m looking forward to his confirmation hearings with a kind of back-to-school anticipation. It’s the first Supreme Court vacancy in eleven years. And because Roberts is not a seething, absolutely predictable freak like Thomas or Robert Bork, and therefore isn’t making it easy for left and right to default to their righteous black-and-white positions, we have a chance at a serious, civil, constructive conversation about the society and government we want for ourselves.
In fact, the debates over Supreme Court nominations may be replacing presidential elections as our great self-defining civic moments. Particularly in the age of blogs and 24/7 cable news, ordinary campaigns seem too anything-goes, too democratic—too vulnerable to the likes of the Swift Boat Veterans for Truth—to produce much in the way of useful debate. The main attempt to bork (or to swift-boat) Roberts so far, the NARAL Pro-Choice America TV ad suggesting that he is an ally of abortion-clinic bombers, was pulled after only a few days. An old-school standard of fairness was observed as it never is in the feral heat of elections.
Yet if Bork’s nomination in 1987 heralded a new, more highly public and hyperideological era of judicial nominations, Roberts’s appointment represents the next stage of politicization—of the nominee chosen like a golden boy by the party bosses, nice-looking and pleasant-seeming, a prospective justice who, positions aside, seems like a good guy. Should we care if we think we’d enjoy having a beer or making small talk about the kids with our presidents, let alone our Supreme Court justices? Whether or not we should, we do. The reason the Senate didn’t confirm John Bolton was less his contempt for multilateralism than the simple fact that he’s an unbearable asshole. John Roberts is a shrewd choice (hello, Karl Rove!) because he is low-key, nonconfrontational, clubbable, menschy—in other words, electable, if justices had to be elected.
A New Yorker I know, a Supreme Court clerk of Roberts’s era who has lately entertained his own fantasies of a Court appointment, calls him “a regular Scarsdale Galahad,” referring to the Guys and Dolls lyric about “the breakfast-eating, Brooks Brothers type” with “the strong moral fiber [and] the wisdom in his head.” When the left’s great, legitimate fear is ivory-tower Federalist Society screwballs packing the court, even Roberts’s decade as a partner in a mega-Establishment D.C. law firm counts in his favor among mainstream liberals.
My friend the former clerk also says that “Roberts looks good to the left and right because liberals see Cambridge”—he went to Harvard and Harvard Law—“and conservatives see a tie-wearing churchgoer.” He is one of us, but not one of us. Although Roberts and I graduated in the same Harvard class (and lived in the same dorm), I’d never heard of him until last month, and of the ten classmates I surveyed, most of them lawyers, not one met him in college either. He studied religiously and attended church regularly. Here is the single strangest reported fact about Roberts: According to his college roommate quoted in the Harvard Crimson, “He was a great consumer of Pepto-Bismol and always had a bottle or two on hand”—a far weirder form of compulsive adolescent self-medication than the rest of us practiced.
And yet he’s not a total stiff. The flashes of wit in the memos he wrote as a young Reagan-administration lawyer seem like redeeming glimpses of humanity to me—which proves I’m as caught up as anyone else in the personalization of judicial politics. In a note about a letter from a professor who was worried that he might be blacklisted by the USIA, Roberts wrote, “Once you let the word out there’s a blacklist, everybody wants to get on.”
But what does Roberts believe? What does he think about reading between the lines of the Constitution, about letting judicial precedent stand, about whether public-school prayer and abortion should be legal and how environmental laws can be constitutionally enforced? Starting the day after Labor Day, Chuck Schumer and Pat Leahy and the other Democrats on the judiciary committee will ask him all those questions. No one should pretend to be shocked. He is a conservative Republican. He’s been nominated by a conservative Republican. And so, duh, his Republican-administration-lawyer memos from the eighties consistently take positions that you and I and most of the readers of this magazine find variously objectionable—looser enforcement of civil-rights laws, weaker protections for criminal defendants, a more porous wall between church and state.
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.