Supreme Choice

I did not watch the President's announcement of his Supreme Court nominee on Tuesday night. I just couldn't do it. On one hand, I felt I owed it to my readers to offer my perception of the event. On the other, I feel I've given this guy too many hours of my life already. I expected a long, drawn-out dog and pony show, with George praising his appointment, and the nominee gushing like a schoolgirl, followed by statements by the right and left about why this person represents the second coming or the devil incarnate. Since I, like most liberals, expected to be annoyed by his choice, the whole thing seemed like a really long infomercial for something I wasn't interested in buying. I could, I reasoned, read the story online at 8:30 and avoid the pain.

Thus, you can imagine my delight when the whole spectacle was over by 8:15. Allowing me to catch a rerun of House on Fox.

So now I'm expected to give my opinion of the guy, and you know what, I can't. Like most Americans, I don't know anything about him. Which seems to be the strategy here. Unlike many on the left, I can't simply oppose him for being conservative. George Bush is king of the conservatives: what did you expect? His stance on Roe -- which, being a man who is not likely to ever have to deal with a pregnancy, is quite frankly not terribly important to me -- seems uncertain at best. On one hand, he has argued against it; on the other, he said in a previous confirmation hearing that he considered it "the settled law of the land." On a third hand, that is because Roe had been affirmed and reaffirmed by the Supreme Court. Once a member of that court, he could do anything.

Which seems to be the point. No one knows what this guy will do. He's only been a federal judge for two years, and has adjudicated a limited number of cases, few of which were controversial. Liberal watchdog groups are seizing on whatever they can find to discredit him, because that's their duty as liberal watchdog groups. I can't imagine that Bush could have nominated a candidate they would find acceptable. There's a good chance John Kerry, had he been elected, would have had a difficult time finding a candidate they would find acceptable who would also have been confirmable.

As a lawyer, John Roberts -- I suppose I should call him by name -- has argued against abortion rights. But he has also made it clear that as a lawyer, he argued his cases, not his opinions. He has worked for two administrations -- Reagan and Bush I -- and Senate Democrats are seeking access to documents from those periods, trying to suss out where the man stands. That is as should be expected. This is less a fight against Roberts than a fight against Bush. But should they gain access -- which is doubtful -- I don't suppose there will be much there for them. The word on Roberts is that he is an excellent attorney, which is to say, essentially soulless. At least as far as his work goes. His job has been to win, not to fight for what's right. He represented NBC in fighting media regulation, but also argued the antitrust suit against Microsoft. Above all, he does not seem to be the rampant social conservative Bush's most extreme supporters might prefer.

"Seem" is the operative word.

Having seen a bit of the man over the past few days, Bush's decision to schedule his debut for prime time -- and then get the hell out of there -- makes sense. Roberts is the kind of guy who, as my friend Harry Ross would put it, "doesn't smell crazy." Which doesn't mean that he isn't crazy, mind you. But he's not a Robert Bork or Fat Tony Scalia, who immediately put you off your lunch. He's youngish and affable with two small (and adopted) children and a seriously washed-out looking wife -- someone who doesn't set off alarm bells. My immediate response to him is not necessarily one of trust, but a measured sigh of relief, considering some of the other candidates under discussion. The question liberals need to ask themselves about Roberts is not, "How bad is he?" but "If he is not approved, how much worse will the next candidate be?" Because like it or not, sooner or later Congress will approve someone Bush sends them. And he ain't sending them Shirley Chisholm. (And not only because she's dead.)

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My greatest concern about Roberts -- considering that I know so little about him -- is his age. He's 50. And from what I can see, in pretty good health.

This doesn't make him the youngest candidate to the bench in recent years. That would be Clarence Thomas, who was a stripling of 43 when he ascended. And it shows. Almost immediately, Thomas became a lapdog for Antonin "Fat Tony" Scalia, and has never fully emerged from his shadow. Only in the past few years has he started show signs of independent judgment.

In general, 50 is about par for the court. Three of the eight remaining judges were 50 or 51 when they were appointed, and O'Connor was 51. Rehnquist was 47 when Nixon sent him to the bench. John Paul Stevens was 55 when Gerald Ford appointed him 30 years ago. Clinton's choices, Ruth Bader Ginsburg and Stephen Breyer, were 60 and 55, respectively.

In general, I prefer a 60 year old appointment to a 50 year old. And anything below 50 is criminal. Unless you are me, there's a good chance that by 50 you should have been able to rack up a substantial body of work, and perhaps deserve elevation to a high court. But appointments to the Supreme Court are for life. To my mind, an appointment for life presupposes that you should be dying pretty soon. In recent times, as we have seen, this is not the case. Much has been made of the fact that the current lot of judges have served together since 1994. As long as we keep appointing younguns to the bench, that trend will continue. And I'm not so sure that's a good thing. I like a little conflict in the court -- on the whole, I think it's best for all of us.

And quite frankly, no matter what your opinions, there's a good chance that in 10 years I'm going to find them obsolete. I much prefer you dead.

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There's always a chance, of course, that Justice Roberts will surprise us all. Sandra Day O'Conner famously told Ronald Reagan that she found abortion "personally abhorrent." Now abortion rights advocates are keening over her retirement. Arlen Specter, the chairman of the Senate Judiciary Committee, has said that you can't predict what a nominee will do once they're confirmed. This seems especially true in the case of John Roberts.

Not that Roberts isn't a dyed in the wool conservative. He is. But you can never predict exactly what that means. Of the nine justices on the Court (before O'Conner's retirement), seven were appointed by Republican presidents. Three were appointed by Reagan (Scalia and Anthony Kennedy, in addition to O'Connor) and two by Bush senior (David Souter and Clarence Thomas). Of those, only Scalia and Thomas have proved reliably conservative. Even Thomas is starting to show a drift to the left, miniscule though it may be. When the Court recently overturned sodomy laws in 13 states, Thomas dissented. But he wrote in his dissent that though he didn't believe the Supremes had the right to overturn those laws, the laws were foolish and should have been done away with. This is in opposition to Fat Tony, who wrote "Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children's schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive." Roberts seems more likely to side with Thomas than Scalia on this one.

Souter has proved a big disappointment to the right. GBI said he would be "committed to interpreting, not making the law." Sounds familiar. Since then, he has proved to be one of those activist judges GBII hates, backing gay rights, abortion rights and affirmative action and voting against the death penalty for juvenile offenders. Kennedy, while not as liberal as Souter, has become increasingly moderate, voting in favor of abortion rights (with O'Connor and Souter) and against prayer at public school graduations. Kennedy even wrote the decision that struck down sodomy laws. In doing so, he rejected Scalia's "originalist" school of constitutional interpretation, which focuses on the intent of the framers. In his opinion, Kennedy wrote that "later generations can see that laws once thought necessary and proper in fact serve only to oppress."

It is too early to predict how Roberts' decisions may turn out should he be confirmed. But for now he seems more reasonable than most of Bush's cronies, and that will have to do.