Ross Mackenzie

So it's John Roberts. He is President Bush's Supreme Court nominee who will be the latest test of how close the confirmation process has approached to meltdown.

By most accounts supremely well-credentialed, Judge Roberts possesses a world-class legal mind. President Bush has said he most admires Justices Thomas and Scalia, and has pledged to nominate to the Supreme Court (as he has to the appellate courts) "strict constructionists" like them. Judge Roberts seems precisely the conservative coveted by those at the heart of Bush's political constituency.

In a perceptive New York Times Magazine profile of two nominees mired in the appellate-court process, Jeffrey Rosen wrote this about Roberts three years ago:

Judicial temperament is often hard to predict; but for what it's worth, I was struck in a wide-ranging conversation by Roberts' sense of humor, apparent modesty, and above all his Jimmy Stewart-like reverence for the ideal of law shaped by reasoned argument rather than by ideology.

Still and all, none of that means Judge Roberts will prove an easy rider through the Supreme Court confirmation process.

At the time of Rosen's article, Roberts was failing for the second time to win even a Senate hearing for an appellate court nomination. Nominated to the federal bench by the first President Bush in 1992, his nomination died without a hearing. So did his second nomination (in 2001) by the second President Bush. Only when nominated a third time by President Bush in 2003 did Roberts win not only a hearing, but confirmation to the D.C. court with relative ease.

And run these names through your mind: Miguel Estrada, Carolyn Kuhl, Claude Allen, Charles Pickering, Terrence Boyle, William Myers, Henry Saad, Brett Kavanaugh, William Haynes. All are distinguished Bush nominees to the appellate bench, yet have been denied hearings and/or confirmation by a Senate lacking the numbers or the moxie to give them an up-or-down vote.

This president plays for keeps.

He has gone with youth - nominating a 50-year-old to a seat on a court where only Clarence Thomas is younger than 65. Moreover, he has nominated a conservative who himself is a survivor in a legal establishment some of whose loftiest precincts seem each day more infused with the judicial activism (and jurisprudential nonsense) that has spread from the Yale Law School 40 years ago to many of the other leading law schools in the land. The Federalist Society is the principal antidote in the establishment to that activist infestation. It's a society boasting the membership of such compelling intellects as . . . John Roberts.

Ross Mackenzie

Ross Mackenzie lives with his wife and Labrador retriever in the woods west of Richmond, Virginia. They have two grown sons, both Naval officers.

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