Bush's Smart Supreme Court Pick

Confirmation hearings are still more than a month away, but the country is already abuzz with talk about Bush’s nominee for the Supreme Court. In the days after Justice O’Connor’s resignation, commentators rejected the possibility of an early nomination. They believed that the administration was afraid of a repeat of the Bork nomination when a long wait until confirmation gave liberals plenty of time to rake up the dirt against the nominee.

The question for conservatives (and for liberals no less, of course) is whether John Roberts, currently a federal judge on the D.C. Court of Appeals, is the right pick. Wary of all the supposedly conservative judges appointed by Republican presidents over the past couple of decades, conservative politicians and columnists have warned that no chances can be taken. We do not want another Justice Souter, their warning is. Souter looked like a conservative, walked like a conservative, talked like a conservative, but unfortunately rules according to the desires of the lunatic left-wing.

Thus, some wariness is appropriate. Some on both sides of the political spectrum have already declared Roberts the wrong pick. NARAL Pro Choice has—not surprisingly—sounded the alarm about Roberts in view of his well-documented pro-life views. Ann Coulter recently rejected Roberts as an other “Souter in Roberts’ Clothing” because of his lack of documented views. So, which of the two is it?

Strictly speaking, Coulter is probably right. On the particular question of abortion, Roberts has no personal view on the books (though there is a document from when he was defending Reagan policy, which does not reflect his personal views). But I do not think we need to follow the vitriol of Ms. Coulter; partly because she does not look at the evidence properly.

Shannen Coffin of the National Review has a better perspective. He realizes that, unless a foolproof crystal ball is invented before September, the best way to predict Roberts’ rulings is to assess his character and method on the bench. In his article, Coffin points out that Mr. Roberts’ record indicates more than a mere inclination to follow the clear letter of the law. In interpreting the law as it relates to cases before him, he is certainly not devoid of emotion or even humor. But when it comes to deciding the case, he has only one standard: what does common sense tell us about the interpretation and meaning of the law?

That means that he does not invent meaning on the spot. He looks only at what the law says in the visible ink, not the invisible ink seen only by left-wing loonies. Roberts’ most illustrative decision was issued only last week. In this case, he dissented from the majority which ruled a search of a car’s trunk unconstitutional, since they followed the driver’s reasoning that the police should first have investigated his claim that the car belonged to his girlfriend, rather than assume the car was stolen.

Roberts was sharply sarcastic of the majority in his opinion: “Sometimes a car being driven by an unlicensed driver, with no registration and stolen tags, really does belong to the driver’s friend, and sometimes dogs do eat homework, but in neither case is it reasonable to insist on checking out the story before taking other appropriate action.” In other words, there was nothing unreasonable about the police officers’ assumption that the man was up to no good and that the trunk of the car needed to be searched.

This bodes well for Mr. Roberts. We will not be able to find out his exact stance on all topics. If he is smart—as he has proven himself to be—he won’t answer the question Ted Kennedy is certain to ask: “Will you reverse Roe v. Wade?” Senator Kennedy will grit his squirrel teeth, knowing that Roberts’ wife is an active pro-life lawyer (who works for Feminists for Life). But even though Kennedy is on the record of saying that for judges’ wives to be pro-life “ought to be out of bounds”, he is not allowed to use it against Mr. Roberts. Stick that where the sun don’t shine, Kennedy!

I am confident that President Bush has picked the right guy and it is an astonishingly smart pick. No-one in his right mind can help but like the man and his record. There are no certainties in this life and Justice Roberts may well, on occasion, rule with the liberals. But his record shows that he will only do so when the Republicans are plainly wrong in the matter. (Let’s not declare the Republicans infallible, please.) As for the rest, he promises to interpret the law by looking at what it says, not what the cross-dressing, gender-bending, neo-Marxist academics of the elite left believe it ought to have said. That’s good enough for me.