When O'Connor retired, President Bush did not move as boldly as President Clinton did in replacing White. He did not declare his nominee "clearly pro-life." In fact, Bush did not even move as boldly in picking a Supreme Court nominee as he had in picking many of his appellate court nominees -- some of whom were battle-scarred veterans of lower courts, who had taken unambiguous stands on controversial issues and who, as a consequence, were filibustered by Senate Democrats.
Instead, he picked John Roberts, one of his appellate court nominees who had not been filibustered.
Roberts, a brilliant lawyer, managed to spend a quarter of a century working on constitutional issues in Washington, D.C., without ever publicly tipping his hand about where he personally stands on constitutional issues.
In 2003, when his appeals court nomination came up in the Senate Judiciary Committee, he was asked about his philosophy of constitutional interpretation.
"Well," he said, "I think I would have to say that I don't have an overarching, uniform philosophy."
He was also asked about his statement, in a brief written as deputy solicitor general in the first Bush administration, that Roe's conclusions "find no support in the text, structure or history of the Constitution."
He said: "I do not believe that it is proper to infer a lawyer's personal views or beliefs from the argument advanced by that lawyer on behalf of a client."
Since his nomination, reporters and interests groups have been searching Roberts' record for evidence of where he truly stands. There are many intriguing hints.
For pro-life conservatives, one of the most intriguing may be the statement made in The Washington Post this week by commentator Bruce Fein, who served with Roberts in the Reagan Justice Department.
"I know he thought Roe was totally ill-reasoned and extra-constitutional," said Fein. "Everyone in the department did -- we talked about it." Fein added that whether Roberts would vote to overturn Roe "is another matter," depending on how deferential he is to precedent.
The true measure of Roberts as a justice may not come until years after he is confirmed.
But a reckoning will come sooner for President Bush. When the next vacancy opens, will he duck a healthy political battle -- implicitly accept a Democrat-imposed litmus test on his constitutional authority to nominate justices -- and pick another stealth nominee? Or will he prove once and for all that a Republican president and a Republican Senate are ready and able to nominate and confirm an out-of-the-closet conservative to the U.S. Supreme Court?