President Bush on Tuesday chose federal appeals court judge John G. Roberts Jr. to be the 109th justice of the U.S. Supreme Court and Bush’s first nominee for the high court. The president selected a rock-solid conservative whose nomination could trigger a tumultuous battle over the direction of the nation’s highest court. ~MSNBC
It was good to see that the conventional wisdom about the Supreme Court nomination was wrong. Mr. Bush did not feel compelled to find a “replacement” for someone “in the mold of Sandra Day O’Connor,” but chose a rather different sort of judge, John Roberts from the U.S. Appellate Court of the D.C. Circuit. From the standpoint of his nominee’s being confirmed by the Senate, the President has made one of the best choices he could have made. I was pleased to see that my guess was right, though I am less confident that Roberts is as “rock-solid” in his conservative judicial philosophy as many seem to believe. This is not because of John Roberts, about whom I admittedly know little, but because of Mr. Bush’s perverse understanding of the Constitution and conservatism. A president who imagines it is lawful for him to declare any individual an enemy combatant, including U.S. citizens, and strip him of all legal protections, or who imagines that he can start wars at his discretion after a mere congressional resolution is not a fit judge of what “strict construction” or judicial restraint are. I fear anyone he regards as being a strict constructionist might well be more activist and revolutionary than anyone now imagines.
From what I do know, Judge Roberts seems to be a fairly conventional Republican lawyer with extensive party contacts and a long career in Washington. That in itself will reassure the mandarins in the Capitol that he is no threat to their order, as he has been part of it for a very long time. In his brief remarks tonight, he made all the appropriate noises of defending the “institutions of our democracy,” which was presumably meant to be reassuring to all who were listening. Personally, I am immediately skeptical of anyone’s conservative credentials when he is pleased to descrive America as a democracy (it may or may not be, depending on how we define it, but there is scarcely a kind of democracy beyond the polis level that a conservative should be pleased to defend).
He has some record of taking up for corporate interests, but in environmental regulatory cases where he is on much firmer constitutional ground, whatever the unfortunate public policy that might result. However, his siding with corporations in the past hardly will endear him to traditional conservatives lamenting the disaster of the Kelo eminent domain decision–in this sense he will truly not be anything like Justice O’Connor, and it will be a pity. He has shown intimations of being hostile to the Roe decision, but then so was O’Connor before she went native at the Court. Very recently, he joined with his colleagues on the appellate court in a 3-0 decision affirming the legality of military tribunals for terrorism suspects at Guantanamo, which will probably endear him to the editors of the Wall Street Journal and our friends at RedState.org, but which suggest he will probably be more accommodating on expansive federal antiterror powers than some other justices. It is, as of yet, too soon to tell much, but only a nation that does not truly rule itself could ever be so concerned about the appointment of one of judges who are its real rulers.